fa.319.06.jud 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.319 OF 2006
United India Insurance Co. Ltd.
through its Regional Manager,
Nagpur Regional Office,
Shankar Nagar Square, Nagpur. .... Appellant
-- Versus -
01] Smt. Pansheela wd/o Indraraj Borkar,
Aged about 32 years, Occupation : Nil.
02] Saurabh s/o Indraraj Borkar,
Aged 4 years, minor through his
Natural Guardian Mother Respondent No.1.
Both resident of Shahid Mishra Ward,
Tirora, Tah. Tirora, District Gondia.
03] Manish s/o Rupchand Sorle,
Aged about 20 years,
Occupation : Driver & Owner
of the Tata Sumo No. MH-26/E/0897,
R/o Hanuman Mandir Chowk, Gondia,
Tahsil & District Gondia. .... Respondents
Shri D.N. Kukday, Advocate for the Appellant.
None for the Respondents.
CORAM : KUM. INDIRA JAIN, J.
DATE : AUGUST 18, 2017. ORAL JUDGMENT :-
This appeal takes an exception to the judgment and award dated 29/10/2005 passed by the Motor Accident Claims ::: Uploaded on - 23/08/2017 ::: Downloaded on - 27/08/2017 00:35:15 ::: fa.319.06.jud 2 Tribunal, Gondia (hereinafter referred to as 'the Tribunal' for short) in Claim Petition No.40/2004. By the said judgment and award, Tribunal awarded compensation of Rs.9,48,160/- with interest thereon to the legal representatives of deceased Indraraj Borkar, who met with his death in a vehicular accident occurred on 30/04/2004.
02] The facts giving rise to the present appeal may be stated in nutshell as under :
i. On 30/04/2004, Indraraj was going towards his house on bicycle. At about 05:40 hours, near Churdi Fata at Tirora, one white TATA Sumo came in high speed and gave a dash to Indraraj from the backside. He received multiple injuries and died on the spot. ii. Respondent nos.1 & 2 are the widow and son of deceased Indraraj. According to them, at the relevant time, respondent no.3 was driving the vehicle in a rash and negligent manner. The vehicle was insured with the appellant. It was submitted that the driver- ::: Uploaded on - 23/08/2017 ::: Downloaded on - 27/08/2017 00:35:15 ::: fa.319.06.jud 3 cum-owner and insurer were jointly and severally liable to pay compensation under Section 166 of the Motor Vehicles Act.
iii. On quantum, submission was that Indraraj was working as High School Teacher in Shri Sant Gnyaneshwar High School, Bhiriya, Tirora and was getting Rs.11,115/- per month. He was the sole breadwinner in the family. At the time of death, he was 45 years old. Because of his untimely death, they had to face hardship and suffered pain and mental agony. They were also deprived of love and affection. On all counts, claimants restricted compensation to the tune of Rs.20.00 lacs with interest thereon.
iv. The driver-cum-owner of the vehicle resisted the claim vide written statement [Exh.23]. He raised defence of total denial and submitted that his vehicle was not involved in the accident. According to him, police has falsely implicated him in a criminal case though he is not responsible for causing the accident. ::: Uploaded on - 23/08/2017 ::: Downloaded on - 27/08/2017 00:35:15 ::: fa.319.06.jud 4 v. Appellant-insurance company vide written statement [Exh.21] denied the claim. It was submitted that the vehicle was not involved in the accident. F.I.R. was registered against unknown vehicle. As identity of vehicle is not known, liability cannot be fastened on insurance company. It was contended that driver was not holding a valid and effective driving licence and for breach of terms and conditions of policy, claim against insurance company needs to be dismissed. vi. On the basis of rival contentions, Tribunal framed issues at Exh.24. Claimant no.1 - Panchsheela, widow of deceased, examined herself. In addition to her evidence, claimants examined Ashok Meshram as an eye-witness to the accident. Reliance was also placed on police papers, insurance policy and other documentary evidence to substantiate the claim of compensation. Considering the documentary evidence, Tribunal came to the conclusion that accident occurred due to rash and negligent driving of ::: Uploaded on - 23/08/2017 ::: Downloaded on - 27/08/2017 00:35:15 ::: fa.319.06.jud 5 vehicle No. MH-26/E/0897 and held the driver-cum- owner and insurer liable to pay compensation along with interest thereon as stated in paragraph 1 above. Being aggrieved by this judgment and award, insurer has challenged the same in this appeal.
03] Heard Shri D.N. Kukday, learned Counsel for appellant. It is submitted that the identity of vehicle has not been established and the Tribunal wrongly came to the conclusion that vehicle insured with the appellant was involved in the accident. The learned Counsel referring to the police papers and evidence of an eye-witness to the accident submitted that there is no whisper in the F.I.R., spot-panchnama and the evidence of eye-witness that the accident was caused by the vehicle insured with the insurance company. Learned Counsel submitted that driver of the vehicle has been acquitted in a criminal case mainly on the ground that identity of vehicle has not been established. In support thereof, learned Counsel placed on record copy of certified copy of judgment in Summary Criminal Case No.746/2004 passed by the learned Judicial Magistrate First Class, Tirora on 10/12/2013. The said copy is marked as "X" for the purpose of identification. ::: Uploaded on - 23/08/2017 ::: Downloaded on - 27/08/2017 00:35:15 ::: fa.319.06.jud 6 04] It can be seen from F.I.R. [Exh.26] and the spot- panchnama [Exh.28] that crime was registered against the driver of an unknown vehicle. The vehicle involved in accident was not found on the spot. Though spot-panchnama indicates that one white TATA Sumo gave a dash to the deceased, there is no whisper in the police papers regarding description of the offending vehicle.
05] Claimants examined two witnesses to substantiate their claim. Admittedly, claimant no.1-Panchsheela is not an eye witness to the accident. Witness Ashok Meshram is examined to prove the manner of occurrence of accident and the involvement of vehicle. According to Ashok Meshram, on 30/04/2004, he was going for morning walk. He was returning via Tirora-Tumsar road. When he reached near Churdi Fata, he saw Indraraj proceeding ahead towards his house on bicycle. He stated that one white TATA Sumo came from Tirora towards Gondia and gave a dash to bicycle of Indraraj. Indraraj fell on the ground and died on the spot. Except stating that white TATA Sumo was involved in the accident, witness Ashok Meshram did not give description of the vehicle so as to identify the same. The scrutiny of police papers and the evidence of witnesses examined by the claimants clearly ::: Uploaded on - 23/08/2017 ::: Downloaded on - 27/08/2017 00:35:15 ::: fa.319.06.jud 7 indicates that claimants could not prove the involvement of vehicle No. MH-26/E/0897 in the accident. Even criminal court has acquitted the driver of vehicle on the ground that identity of vehicle has not been established by the prosecution. 06] In the above premise and for want of evidence regarding identification and involvement of the vehicle, liability to pay compensation cannot be fastened to the insurer. The impugned judgment and award is thus unsustainable in law. Hence, the following order :
ORDER I. First Appeal No.319/2006 is allowed. II. Impugned judgment and award dated 29/10/2005 passed by the Motor Accident Claims Tribunal, Gondia in Claim Petition No.40/2004 fastening the liability on insurer is quashed and set aside. III. Consequently, Claim Petition No.40/2004 against the insurer stands dismissed.
IV. No costs.
(Kum. Indira Jain, J)
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fa.319.06.jud 8
At this stage, learned Counsel for appellant submits that entire decretal amount has been deposited with this Court and respondent no.1 was allowed to withdraw Rs.2.00 lacs against the security of her own house. It is submitted that appellant be permitted to withdraw the amount deposited and further to recover the amount withdrawn by respondent no.1.
Allowed to withdraw. Appellant is at liberty to recover the same in accordance with the law.
*sdw (Kum. Indira Jain, J)
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