(Judgment) 2408 FA 659-2005 1/13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH AT NAGPUR.
FIRST APPEAL NO. 659/2005
The Branch Manager,
The United India Insurance Co. Limited,
Rani Jhansi Chowk, Sitabuldi, Nagpur,
through Regional Manager, Nagpur,
Regional Office, Shankar Nagar, Nagpur. APPELLANT
.....VERSUS.....
1] Rashidabano wd/o Raheman Khan Pathan,
aged about 35 years, Occu: Household,
2] Ajajkhan s/o Raheman Pathan,
aged 11 years, Occu: Student,
3] Vayajkhan s/o Raheman Pathan,
aged 9 years, Occu: Student,
4] Rizwankhan s/o Raheman Pathan,
aged 7 years, Occu: Student,
Respondent nos.2 to 4 minors, through
mother respondent no.1.
5] Prashant s/o Krishnarao Tonpe,
aged about : major, Occu: Driver,
R/o. Raman Chandak Nagar,
Katol, Tahsil - Katol, Distt. Nagpur.
M.I.W. No.2, Arunawati Project,
Digras, Tq. Digras, Distt. Yavatmal. RESPONDE NTS
Shri D.N. Kukday, counsel for appellant.
None present for respondents.
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(Judgment) 2408 FA 659-2005 2/13
CORAM: S.B. SHUKRE, J.
DATE : AUGUST 24, 2017.
ORAL JUDGMENT :
This is an appeal preferred against the judgment and order dated 28/08/2005 delivered in Claim Petition No. 151/1995 by the Member, Motor Accident Claims Tribunal, Nagpur.
2] By the impugned judgment and order, the Tribunal at Nagpur partly allowed the application filed by the respondent nos.1 to 4 under Section 166 of the Motor Vehicles Act, 1988 and granted them compensation of Rs.1,59,500/- together with interest at the rate of 7.5% per annum from the date of application till actual realization, which was made payable by the appellant solely.
3] It was the case of the appellant as well as respondent no.5, the driver of the offending vehicle Mahindra Commander Jeep bearing registration no. MH- 31-G-3858, which was driven by respondent no.5 at the relevant time and insured with the appellant at the relevant time, that this vehicle was not involved in the ::: Uploaded on - 04/09/2017 ::: Downloaded on - 05/09/2017 00:40:36 ::: (Judgment) 2408 FA 659-2005 3/13 alleged accident, in which deceased Raheman Khan, husband of respondent no.1 and father of respondent nos. 2 to 4 died. The accident had occurred on 29/01/1995 in between 14:30 hours and 16:00 hours at the time when the deceased was allegedly returning to Kondhali from Dighori by traveling in the offending vehicle. The Tribunal, however, on merits of the case, rejected such defence taken by the respondent no.5 as well as the appellant and partly allowed the claim petition of the respondent nos.1 to 4 by the impugned judgment and order.
4] Being aggrieved by the same, the appellant is now before this Court in the present case. 5] I have heard Shri Kukday, learned counsel for the appellant. None appears for the any of the respondents, though all of them are served on merits of the appeal.
6] I have gone through the record of the case including the impugned judgment and order. Now, following points for my determination : ::: Uploaded on - 04/09/2017 ::: Downloaded on - 05/09/2017 00:40:36 :::
(Judgment) 2408 FA 659-2005 4/13 "(i) Whether the offending vehicle, Mahindra Commander Jeep bearing registration no. MH-31-G- 3858, was involved in the accident which occurred on 29/01/1995 in between 14:30 hours and 16:00 hours on a road leading to Kondhali near village Borkhedi?
(ii) Whether an interference with the impugned judgment and order is necessary, and if so, in what manner?".
7] The appellant as well as the driver of the offending vehicle, respondent no.5 had taken distinct defence that this vehicle Mahindra Commander Jeep bearing registration no. MH-31-G-3858, was never involved in the alleged accident, in which the deceased Raheman Khan died. It has been alleged by the respondent nos.1 to 4 that deceased Raheman Khan was, at the relevant time, traveling by the offending vehicle and when the offending vehicle was proceeding at a high speed, due to bumpy condition of the road, deceased Raheman Khan could not hold on to his seat in the vehicle in a secure manner and fell out of the Jeep due to the jerks, that he received. It was also alleged by these respondents that, as a result of such falling out of the ::: Uploaded on - 04/09/2017 ::: Downloaded on - 05/09/2017 00:40:36 ::: (Judgment) 2408 FA 659-2005 5/13 running Jeep, deceased Raheman Khan sustained grievous injuries and died on the spot. So, in order to examine these rival claims, it would be necessary to deal with the evidence brought on record by the respondents. 8] Upon over all consideration of the evidence available on record, I find that it is extremely difficult to believe the claim made by the respondent nos.1 to 4. The F.I.R. vide Exh.43 has been admittedly registered against an unknown driver and the information of the accident and the death of Raheman Khan was received admittedly at about 17:00 hours or 5:00 p.m. on 29/01/1995. Interestingly, this information was not given by the alleged eye witness, PW-2 Imam Khan Nurkhan (Exh.46), who has deposed before the Court that when he was traveling by one S.T. Bus to Katol, he happened to actually witness the accident and not only that, he also got an opportunity to note down the number of the offending vehicle, which was a Jeep, having registration no. MH-31-3858. It is the case of the respondent nos.1 to 4, the original claimants, that this accident was actually witnessed by PW-2 Imam Khan and respondent no.1, the widow of the deceased, who ::: Uploaded on - 04/09/2017 ::: Downloaded on - 05/09/2017 00:40:36 ::: (Judgment) 2408 FA 659-2005 6/13 deposed as PW-1, made a claim that information about the accident and death of her husband in this accident, was received by her on the same night of 29/01/1995. This is also deposed about by PW-2 Imam Khan and in his cross-examination, taken on behalf of the appellant, he admitted that information about the accident was passed on by him to PW-1 at about 10:00 p.m. on 29/01/1995.
9] So, if such evidence of PW-2 Imam Khan is to be believed, it would also have to be inferred that PW-2 Imam Khan knew about the death of Raheman Khan in the accident, in which the offending vehicle was involved at about 3:00 p.m. itself, or sometime thereafter, that he also knew that the deceased was none else than Raheman Khan and that he also knew that he was the husband of PW-1 and yet PW-2 Imam Khan did not do anything to immediately inform PW-1 about the death of her husband, which he witnessed to have taken place sometime between 3:00 p.m. and 4:00 p.m. on 29/01/1995. On the contrary, PW-2 Imam Khan calmly chose to proceed to Katol, do his work there and return from Katol and then decide at leisure to inform PW-1 ::: Uploaded on - 04/09/2017 ::: Downloaded on - 05/09/2017 00:40:36 ::: (Judgment) 2408 FA 659-2005 7/13 about the accidental death of her husband, which information he passed on to PW-1 at about 10:00 p.m. on 29/01/1995. This witness also chose not to inform the police anything about the offending vehicle, in spite of his having noted the registration number of the offending vehicle nor does he state anywhere that he tried to approach police station, but could not. He also admits in his cross-examination taken on behalf of the appellant that after informing about the accidental death of husband of PW-1 to PW-1, at about 10:00 p.m., he and PW-1 together went by Jeep to the spot of accident. PW-1 in her evidence, however, does not say anything about her going to the spot of accident along with PW-2 Imam Khan. But she admits that sometime during the night of 29/01/1995, she had been informed about accidental death of her husband by PW-2 Imam Khan, due to falling out of the running vehicle allegedly involved in this case. But, PW-1 on her part also does not perform her duty, which anyone in her place would have naturally done. She did not file any complaint with police station nor did she make any effort to find out as to where the dead body of her deceased husband had ::: Uploaded on - 04/09/2017 ::: Downloaded on - 05/09/2017 00:40:36 ::: (Judgment) 2408 FA 659-2005 8/13 been kept.
10] As if the inaction stated above was not enough the situation had come to such a level that in order to perform autopsy on the dead body of deceased Raheman Khan, the concerned Medical Officer was required to take help of one police personnel, Police Constable Vijay, B.No. 1308, Police Station Kondhali for identifying the dead body. If PW-1 as well as PW-2 are to be believed, I do not think that a situation would have arisen for the concerned Medical Officer to seek identification from a police personnel before he conducted post mortem examination of the dead body. On the contrary, PW-1 as well as PW-2, being husband and acquaintance respectively of the deceased, would have found themselves promptly present firstly at the police station and then at the concerned mortuary where post mortem examination was conducted, but that was not to be.
11] All the facts and circumstances discussed thus far would show that conduct of PW-1 and as well as PW- 2 was highly unnatural in the instant case and it was ::: Uploaded on - 04/09/2017 ::: Downloaded on - 05/09/2017 00:40:36 ::: (Judgment) 2408 FA 659-2005 9/13 unnatural for obvious reason, that none of them witnessed anything which was stated before Court by the both and which they wanted the Court to believe. 12] Such unnatural conduct would lead to the conclusion that PW-2 neither witnessed the accident nor informed PW-1 anything about the accident. It would further indicate that PW-1 did not receive any information about the accidental death of her husband, in which the offending vehicle was allegedly involved, from PW-2 nor did she visit the spot of accident in the same night of 29/01/1995, together with PW-2, as claimed by the latter. If all this was untrue, I do not think, PW-1 would have chosen to not inform the police anything about the occurrence of the accident, would have not obtained the details about the place where dead body of her husband was kept and would have not remained present at a place where post mortem examination on the dead body of the deceased was conducted. This was the reason why the police were compelled initially to register the crime against an unknown driver of unknown vehicle. This was also the reason why the informant, in the instant case was ::: Uploaded on - 04/09/2017 ::: Downloaded on - 05/09/2017 00:40:36 ::: (Judgment) 2408 FA 659-2005 10/13 neither PW-2 nor PW-1, but one Sheikh Bablu Sheikh Ustan, whose name prominently appears as informant in the F.I.R. It was him who actually gave the information about the accident at about 5:00 p.m. on 29/01/1995 to Police Station Kondhali.
13] All these facts and circumstances, which are discernible from the record, have been completely ignored by the learned Member of the Tribunal and that is the reason why he recorded a finding, albeit erroneously, that the Jeep involved in the present case was the present vehicle which was insured with the appellant and respondent no.5 was it's driver who drove it in a rash and negligent manner at the relevant time. The facts discussed earlier would rather show that evidence of PW-1 and PW-2, the only witnesses examined in this case, cannot be believed for their claim that Mahindra Commander Jeep bearing registration no. MH-31-G-3858, was involved in the accident in the present case. If that is the case, then the only inference that is possible is that this vehicle was not proved to be involved in the alleged accident in which deceased Raheman Khan died. The F.I.R. (Exh.43) shows that the ::: Uploaded on - 04/09/2017 ::: Downloaded on - 05/09/2017 00:40:36 ::: (Judgment) 2408 FA 659-2005 11/13 crime was registered against an unknown driver of an unknown vehicle. In such a case, there was a heavy onus cast upon the claimants to prove that the later investigation showed that this vehicle was indeed involved in the alleged accident. But, that onus has not been discharged even in a slightest manner by the respondent nos.1 to 4. An attempt made by them to discharge the burden by examining on their behalf, PW-2 Imam Khan has also resulted in a miserable failure. Accordingly, I find that the offending vehicle has not been proved by the respondents to be involved in the accident, which resulted in causing of death of deceased Raheman. First point is answered accordingly. 14] Once it is found that the offending vehicle was not proved to be involved in the accident, interference with the impugned judgment and order would be inevitable. There is one more reason why impugned judgment and order deserve to be quashed and set aside. By the impugned judgment and order, liability to pay compensation has been fastened only upon the insurance company. No finding whatsoever has been recorded about the liability of the owner of the ::: Uploaded on - 04/09/2017 ::: Downloaded on - 05/09/2017 00:40:36 ::: (Judgment) 2408 FA 659-2005 12/13 vehicle to pay the compensation. It is well settled law that the insurance company, being an indemnifier, can be found to be liable to pay the compensation only when the liability of the owner to pay such compensation is first determined. Ultimately, the law of insurance is a law about the indemnifying the owner of the vehicle for the loss he suffers on account of his being made to pay for the fault of the driver by drafting in the principle of the vicarious liability. So, the finding about the liability to pay compensation of the owner coming in first is a must and then only finding about the liability of the insurance company to pay can follow. The liability of the insurance company to pay compensation dehors the owner's liability can arise sometimes, but that would be there only if the contract of insurance obliges it to do so. This possibility, it is not anybody's case, is not involved in the present case. But the Tribunal has ignored these fundamentals of the law as well, which ignorance provides an additional reason to interfere with the award. The second point is thus answered as in terms that interference is warranted by dismissing the claim petition.
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(Judgment) 2408 FA 659-2005 13/13
15] In view of the above, I find that this appeal
deserves to be allowed.
16] Appeal is allowed.
17] The impugned judgment and order are
quashed and set aside.
18] The application filed under Section 166 of the
Motor Vehicles Act, 1988 stands dismissed.
19] Parties to bear their own costs.
20] The amount deposited in this Court, is
permitted to be withdrawn by the appellant.
JUDGE Yenurkar ::: Uploaded on - 04/09/2017 ::: Downloaded on - 05/09/2017 00:40:36 :::