Om Prakash and ors. Vs. State of M.P. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 147; [a.k. patnaik, cj, s.s. jha & a.m. sapre, jj] liability of insurer - third party insurance held, the insured who is a party to the insurance is not a third party for the purpose of chapter xi of the act, particularly section 147 thereof. thus, any person other than the insurer and the insured who are parties to the insurance policy is a third party. the insurer, however, would not be liable for any bodily injury or death of a third party in an accident unless the liability is fastened on the insurer under the provisions of section 147 of the act or under the terms and conditions of the policy of insurance. hence, the mere fact that a passenger is a third party would not fasten liability on the insurer unless such liability arises under section 147 of the act or under the terms and conditions of the insurance policy. an employee is a third party inasmuch as he is not a party to the insurance policy. but merely because an employee is a third party, the insurance company would not be liable to compensate in case such employee suffers bodily injury or dies in an accident in which the motor vehicle is involved unless section 147 of the act fixes such liability on the insured or unless the terms and conditions of the contract of insurance fixes liability on the insurer. section 147 (1)(b) of the act provides that in order to comply with the requirements of chapter xi of the act, a policy of insurance must be a policy which insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) against the liabilities mentioned in clauses (i) and (ii) thereunder. even if an employee is a passenger or a person travelling in a motor vehicle which is insured as per the requirements of sub-section (1) of section 147 of the act, the insurer will not be liable to cover any liability in respect of death or bodily injury of such employee unless such employee falls in one of the categories mentioned in sub-clauses (a), (b) and (c)of clause (i) of the proviso to sub-section (1)of section 147 of the act and further in cases where such employees fall under categories mentioned in sub-clauses (a), (b) and (c) of clause (i) of the proviso to sub-section (1`) of section 147 of the act, the insurer is liable only for the liability under the workmens compensation act, 1923. [national insurance co. ltd. v sarvanlal, 2004 (4) mpht 404 (d.b) overruled]. sections 147 & 96 & m.p. m.v. rules, 1994, rule 97; [a.k. patnaik, cj, s.s. jha & a.m. sapre, jj] control of transport vehicles m.p. rules relate to provisions of control of transport vehicles and it cannot be adopted for interpreting sections 147 and 145 of the m.v. act to hold the insurer liable for death or bodily injury suffered by passenger. [national insurance co. ltd. v sarvanlal, 2004 (4) mpht 404 (d.b) overruled]. - on that day when she had gone to fetch water from the well, appellant no. 2 and 3 had given her a push into the well and she was taken out by the villagers. 3. the complainant meena bai was examined by the prosecution and she has stated in her deposition that the accused prema bai and her husband were demanding cash and a 'luna'.she has also deposed to have been assaulted by her husband on the day following 'janmastmi' and having been pushed into the well by appellant nos. however, she clearly says that she did not know about meena bai having been pushed into the well. under these circumstances it would be unsafe to find a conviction for offence under section 498a of the i. p-7, has been lodged by her on 30.8.1990 with reference to the incidents from 1987 to 28.8.1990. her testimony merely creates strong suspicion about the dowry demand but suspicion cannot take the place of proof especially when the witnesses examined from the neighbourhood namely ajay singh p. in relation to the allegation that she had been pushed into the well, it is clear that meena bai was examined by dr. 15) has deposed that she had referred to having received injury in her left eye but there is nothing to suggest from the testimony of this doctor about meena bai having been pushed into the well. 13 sheetal prasad, merely on the ground that she had fallen into well, no inference can be drawn that she had been pushed into a well by the appellant nos. as well and falls greatly short of the degree of proof required in such matters.s.k. kulshrestha, j.1. the appellants have filed this appeal against their conviction for offence under section 498a of the i.p.c. and section 4 of the dowry prohibition act, and also against the conviction of the appellant no. 2 prem bai and appellant no. 3 shyama bai for offence under section 307 for which each of them has been convicted, in addition, to sentence of 6 years r.i. the sentence awarded to appellants for offence under section 498a of i.p.c. is r.i. for 2 years and fine of rs. 500/- and for that under section 4 of the dowry prohibition act, r.i. for 1 year and fine of rs. 500/-.2. appellant no. 1 om prakash is the husband of complainant meena bai, p.w.5, prema bai is her mother-in-law while appellant no. 3 shyama bai is her sister-in-law. it was alleged by the prosecution that the complainant meena bai was married to the appellant no. 1 om prakash some 4 years prior to the date of the incident. initially when she went to the matrimonial home, the conduct of her in-laws was alright, but after a year or two, her husband started demanding motor-cycle etc. it was alleged that her mother-in-law was also ill-treating her and making various demands. earlier attempt was made by her husband to harass her and he had lighted a match to her to burn her. on the day following 'janmastmi'. her husband had struck her with a stick on her eye resulting in damage to her vision. on that day when she had gone to fetch water from the well, appellant no. 2 and 3 had given her a push into the well and she was taken out by the villagers. after 2 days of the incident, she lodged f.i.r. ex. p-7, setting the investigation into motion. after necessary investigation, the appellants have been prosecuted and convicted for offences aforesaid.3. the complainant meena bai was examined by the prosecution and she has stated in her deposition that the accused prema bai and her husband were demanding cash and a 'luna'. she has also deposed to have been assaulted by her husband on the day following 'janmastmi' and having been pushed into the well by appellant nos. 2 and 3. in addition to the testimony of p.w. 5, meena bai, learned trial court took into account the evidence of p.w. 2 r.k. gupta p.w. 4 sundar lal, p.w.9 bindra bai and p.w.11 prabha devi, in coming to the conclusion that meena bai was subjected to cruel treatment on account of the dowry demand as deposed to by her.4. p.w.2. r.k. gupta, is brother of meena bai p.w.5. he has referred to the demand made by the husband of meena bai, i.e., appellant no. 1, and further that this information was given to him by his sister meena bai. likewise p.w.4 sunder lal, maternal uncle of meena bai, asserts in his testimony that the accused were demanding rs. 10,000/- and a motor-cycle and that meena bai had informed him about the illtreatment to which she was subjected by her in-laws. p.w.9. bindra bai, mother of meena-bai p.w.5. has stated that meena bai had informed her that her husband was demanding a cash of rs. 35,000/- in addition to rajdoot motor-cycle. however, she clearly says that she did not know about meena bai having been pushed into the well. p.w. 11 prabha devi, sister of meena bai deposed in the same terms as her mother bindra bai. from the testimony of these witnesses the fact that surfaces is that each one of them states that the demand of dowry was learnt from meena bai but meena bai has not stated in her deposition that she had disclosed these facts to these persons. it is therefore difficult to hold that meena-bai stands corroborated by the testimony of the above witnesses namely p.w. 2 r.k. gupta, p.w.4 sunder-lal, p.w.9 bindra bai and p.w.i 1 prabha devi. under these circumstances it would be unsafe to find a conviction for offence under section 498a of the i.p.c. and section 4 of the dowry prohibition act, merely on the testimony of meena bai p.w. 5, especially when f.i.r. ex. p-7, has been lodged by her on 30.8.1990 with reference to the incidents from 1987 to 28.8.1990. her testimony merely creates strong suspicion about the dowry demand but suspicion cannot take the place of proof especially when the witnesses examined from the neighbourhood namely ajay singh p.w.6, ramsewak p.w.7, maroo p.w.8 and sheetal prasad p.w.13, have not supported the case of the prosecution and have been declared hostile.5. coming to the next question about die charge under section 307 of the i.p.c. in relation to the allegation that she had been pushed into the well, it is clear that meena bai was examined by dr. d.k. swarnkar (p.w.15) immediately on 30.8.90 dr. swarnkar (p.w.15) has deposed that she had referred to having received injury in her left eye but there is nothing to suggest from the testimony of this doctor about meena bai having been pushed into the well. likewise testimony of dr. t.n. khare (p.w. 1) also refers to the injury in the eye. under these circumstances, it could not be said that the prosecution had succeeded and bringing him the offence against appellant nos. 2 and 3 under section 307 of the i.p.c: though, the learned trial court has sought corroboration of the statement of meena bai from the testimony of p.w. 2 r.k. gupta and p.w. 11 prabha devi and the report ex. p-7, these two witnesses were not eye witnesses to the incident and none from neighbourhood having supported the case from amongst p.w.7,. ramsewak and p.w. 13 sheetal prasad, merely on the ground that she had fallen into well, no inference can be drawn that she had been pushed into a well by the appellant nos. 2 and 3. the prosecution evidence does not, therefore, establish its case for offence under section 307 of the i.p.c. as well and falls greatly short of the degree of proof required in such matters.6. in the result, this appeal is allowed and the conviction of the appellants and sentences awarded to them by the trial court, are set-aside. the appellants are acquitted of all the charges levelled against them and set at liberty. their bail bonds are discharged.