State of Madhya Pradesh Vs. Bandu Kashiram Telari - 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]. - 3. if the prosecution evidence before the present stage is of no worth, sessions judges need not repeatedly postpone the cases before them for examination of witnesses but where the evidence is not shabby or otherwise weak, it is necessary that sessions judges should take some interest in ensuring presence of such witnesses. in this case, the sessions judge would have been perfectly justified in issuing non-bailable warrant of arrest against the two witnesses and he should have written demi-official letters to superintendent of police to ensure compliance of the warrants and dealt with the witnesses in a stern manner when they appear before him.orderu.l. bhat, c.j.1. the matter arises out of sessions trial no. 130 of 1992 in the file of additional sessions judge, burhanpur where accused respondent is facing charge under section 302 indian penal code. the investigating officer akhilesh dwivedi and asstt. sub-inspector of police s. s. parmar were summoned to appear before the court and to give evidence on 8-4-1993, other witnesses having already been examined earlier. they were served but they did not appear in court, akhilesh dwivedi, s.i. having informed the court that he was busy in law and order duty and s. s. parmar, a.s.i. not having shown the courtesy of giving any information. the same thing was repeated on 15-7-1993 and 14-8-1993. finally, the court closed the evidence on 14-8-1993. this order is now challenged in revision by the state.2. the fact that the state has taken the trouble of filing the revision indicates that in the opinion of the state, some worthwhile evidence is already on record. non-service of medical officers and police officers in sessions cases and other criminal cases and non-appearance of such officers after summons is a widespread malady in the state. the high court, during past one year, has taken up this question with the state government and the director general of police who have ensured all cooperation in the matter. one can understand a police officer not reaching court on account of very serious and tense law and order situation but no police officer can be permitted to remain absent on two or three occasions under the pretext of being busy in law and order duty. much worse is the case of an officer who is served but does not turn-up in court and does not even apply for exemption from appearance.3. if the prosecution evidence before the present stage is of no worth, sessions judges need not repeatedly postpone the cases before them for examination of witnesses but where the evidence is not shabby or otherwise weak, it is necessary that sessions judges should take some interest in ensuring presence of such witnesses. in this case, the sessions judge would have been perfectly justified in issuing non-bailable warrant of arrest against the two witnesses and he should have written demi-official letters to superintendent of police to ensure compliance of the warrants and dealt with the witnesses in a stern manner when they appear before him. closure of evidence in a case where the evidence already adduced is of some consequence would only lead to miscarriage of justice. in these circumstances, i think it necessary to interfere in this case. consequently, the impugned order is set aside. sessions judge should take all steps with the co-operation of the superintendent of police concerned in securing the presence of the said two witnesses for the purpose of recording their evidence, if necessary, by issuing and enforcing non-bailable warrant of arrest. the superintendent of police, east nimar will take personal interest in the matter to see that the course of justice is not obstructed. revision petition is accordingly allowed.4. copies of this order shall be forwarded to the secretary to the state of government in the home and law departments, director general of police and the superintendent of police, east nimar.

Judgment:
ORDER

U.L. Bhat, C.J.

1. The matter arises out of Sessions Trial No. 130 of 1992 in the file of Additional Sessions Judge, Burhanpur where accused respondent is facing charge under Section 302 Indian Penal Code. The Investigating Officer Akhilesh Dwivedi and Asstt. Sub-Inspector of Police S. S. Parmar were summoned to appear before the Court and to give evidence on 8-4-1993, other witnesses having already been examined earlier. They were served but they did not appear in Court, Akhilesh Dwivedi, S.I. having informed the Court that he was busy in law and order duty and S. S. Parmar, A.S.I. not having shown the courtesy of giving any information. The same thing was repeated on 15-7-1993 and 14-8-1993. Finally, the Court closed the evidence on 14-8-1993. This order is now challenged in revision by the State.

2. The fact that the State has taken the trouble of filing the revision indicates that in the opinion of the State, some worthwhile evidence is already on record. Non-service of medical officers and police officers in sessions cases and other criminal cases and non-appearance of such officers after summons is a widespread malady in the State. The High Court, during past one year, has taken up this question with the State Government and the Director General of Police who have ensured all cooperation in the matter. One can understand a Police Officer not reaching Court on account of very serious and tense law and order situation but no Police Officer can be permitted to remain absent on two or three occasions under the pretext of being busy in law and order duty. Much worse is the case of an officer who is served but does not turn-up in Court and does not even apply for exemption from appearance.

3. If the prosecution evidence before the present stage is of no worth, Sessions Judges need not repeatedly postpone the cases before them for examination of witnesses but where the evidence is not shabby or otherwise weak, it is necessary that Sessions Judges should take some interest in ensuring presence of such witnesses. In this case, the Sessions Judge would have been perfectly justified in issuing non-bailable warrant of arrest against the two witnesses and he should have written Demi-Official letters to Superintendent of Police to ensure compliance of the warrants and dealt with the witnesses in a stern manner when they appear before him. Closure of evidence in a case where the evidence already adduced is of some consequence would only lead to miscarriage of justice. In these circumstances, I think it necessary to interfere in this case. Consequently, the impugned order is set aside. Sessions Judge should take all steps with the co-operation of the Superintendent of Police concerned in securing the presence of the said two witnesses for the purpose of recording their evidence, if necessary, by issuing and enforcing non-bailable warrant of arrest. The Superintendent of Police, East Nimar will take personal interest in the matter to see that the course of justice is not obstructed. Revision petition is accordingly allowed.

4. Copies of this order shall be forwarded to the secretary to the State of Government in the Home and Law Departments, Director General of Police and the Superintendent of Police, East Nimar.