First Appeal No.1798/2019
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.1798 OF 2019 WITH
CIVIL APPLICATION NO.6954 OF 2019
Bajaj Allianz General Insurance
Company Limited ... APPELLANT
VERSUS
Baliram s/o Govind Pimplekar & ors. ... RESPONDENTS
.......
Shri S.G. Chapalgaonkar, Advocate for appellant
Shri S.S. Manale, Advocate for respondents No.1 to 4
.......
WITH
CIVIL APPLICATION NO.11133 OF 2019 IN
FIRST APPEAL NO.1798 OF 2019
Baliram s/o Govind Pimpalekar, Died L.Rs.
Smt. Kantabai w/o Baliram Pimpalekar
and others ... APPLICANTS
VERSUS
Bajaj Allianz General Insurance
Company Limited & ors. ... RESPONDENTS
.......
Shri S.S. Manale, Advocate for applicants
Shri S.G. Chapalgaonkar, Advocate for respondent No.1.
.......
CORAM : R. G. AVACHAT, J.
DATE : 25th AUGUST, 2021
O R D E R:
This appeal is directed against the judgment and award dated 3/1/2019, passed by Motor Accident Claims Tribunal, Aurangabad in Motor Accident Claim Petition ::: Uploaded on - 28/09/2021 ::: Downloaded on - 09/10/2021 05:40:53 ::: First Appeal No.1798/2019 :: 2 ::
No.10/2013, granting compensation of Rs.27,40,557/- with interest @ 7% p.a., on account of death in a vehicular accident. This Appeal has been preferred by the Insurance Company of the alleged offending motorbike. FACTS :-
2. Deceased Vijayanand died on 15/1/2012 in an accident involving two motorbikes. His parents and two sisters, therefore, preferred the claim petition. The Tribunal awarded the same granting compensation as stated above.
3. Heard learned counsel for the parties. Perused the impugned award and the evidence relied on.
Learned counsel for the appellant Insurance Company would submit that, the accident took place on 15/1/2012. The F.I.R. has, however, been lodged 43 days thereafter i.e. on1/3/2012. It was a specific defence of the appellant Insurance Company that the vehicle has been falsely involved in the accident. The deceased received injuries on account of his own negligence while proceeding on his motorcycle. It does not reflect that any other vehicle was involved in the accident. The appellant Insurance Company ::: Uploaded on - 28/09/2021 ::: Downloaded on - 09/10/2021 05:40:53 ::: First Appeal No.1798/2019 :: 3 ::
has produced on record the documents Exhibits 115 to 119. Those have not been relied upon by the Tribunal. The investigating officer could not be examined as he was reported dead. The claimants did not examine eye witness. On the question of quantum, the learned counsel would submit that, P.W.3 Peter has admitted to have had not been authorised to give evidence on behalf of the Company. The order of recruitment of the deceased with Aegis Pvt. Ltd. has not been duly proved. There is no record to show the deceased had ever worked with the said Company since the appointment order was issued just four days before the accident. According to learned counsel, a false and fabricated evidence was brought into service. He, therefore, urged for allowing the appeal.
The learned counsel for the claimants, on the other hand, supports the impugned award.
4. The deceased Vijayanand met with a vehicular accident on 15/1/2012. true, the F.I.R. has been lodged 43 days thereafter, on 1/3/2012. The evidence on record, however, indicates that the delay has rightly been explained in the F.I.R. The averments therein have been reinforced by the ::: Uploaded on - 28/09/2021 ::: Downloaded on - 09/10/2021 05:40:53 ::: First Appeal No.1798/2019 :: 4 ::
evidence on record.
5. The F.I.R. has been lodged by one Vijay Kothale, a friend of the deceased. He was riding pillion on ill-fated motorbike at the relevant time. He is none other than a victim-cum-eye witness of the accident. In the F.I.R., it has been averred as under :-
"It was Sunday on 15/1/2012. The informant Vijay was at his flat taken on rent. By 2.30 p.m., he received a phone call of his friend Vijayanand, deceased. As planned, the deceased came to his flat by 8.30 p.m. Both had decided to go out for dinner. The informant found the deceased to have been inebriated. He, therefore, requested the deceased to let him ride the motorbike. The deceased did not listen. The informant, therefore, preferred to be pillion rider. Both of them started on the motorbike towards Vishrantwadi by 9.00 p.m. While they were passing by Mhasoba Mandir, on Nagar-Pune Road, a truck was seen coming from Airport side. One motorcyclist was following the said truck. The said motorcyclist overtook the truck from the wrong side and dashed against their motorbike. As a consequence, both Vijay and the deceased fell off. People gathered. The informant was unable to stand. Somebody from the crowd took him close to the deceased. The informant contacted his friend on cellphone and asked to come. After a while, an ambulance came. The informant, the deceased and the rider of the other motorbike were taken to Jahangir Hospital in the said ambulance. All the three were extended first aid and then discharged. The sister of the deceased ::: Uploaded on - 28/09/2021 ::: Downloaded on - 09/10/2021 05:40:53 ::: First Appeal No.1798/2019 :: 5 ::
had meanwhile arrived. They took the deceased to his room. The informant, on the next day, came to Aurangabad, his native place. He was admitted to M.G.M. Hospital at Aurangabad as he had suffered fracture of waist bone. On 20th January, he learnt Vijayanand to have passed away. As the informant was taken taking treatment in the hospital, he could not lodge the report of the accident immediately.
6. True, the sister of the deceased, within hours of the accident, gave a statement to the police that the deceased suffered injuries as his motorcycle slipped. The same case has thus, been reiterated in inquest and in the scene of offence panchanama as well (Exhibits 50 and 49 respectively). Admittedly, the sister of the deceased had not witnessed the accident. It thus appears that, she gave the statement based on her imagination. Before the Tribunal, some documents came to be produced from Jahangir Hospital. These documents undoubtedly indicate that the trio i.e. the deceased, informant and the rider of the offending motorbike were rushed to Jahangir Hospital. All the three were discharged after extending them first aid. It is unfortunate that, the deceased took discharge against the medical advice, only for the reason of paucity of funds to incur medical expenditure in a private hospital like Jahangir Hospital. His sister took him back to her room. On the following day, his ::: Uploaded on - 28/09/2021 ::: Downloaded on - 09/10/2021 05:40:53 ::: First Appeal No.1798/2019 :: 6 ::
parents came. The deceased was admitted to Government Hospital whereat the treatment was free. He, however, breathed his last within four days of his admission. It is reiterated that, the informant had given the graphic/ minute details of the accident in the F.I.R. The averments therein have been reinforced by the medical papers submitted by the Jahangir Hospital. Based on the said evidence, no other conclusion can be drawn than the one drawn by the Tribunal regarding the manner in which the accident took place and involvement of two motorbikes therein. QUANTUM :-
7. The learned counsel for the appellant Insurance Company has rightly not argued much on the question of quantum of compensation awarded by the Tribunal. I find some mistake committed by the Tribunal in calculating the amount of compensation, the rectification of which would lead to enhancement thereof, but for want of appeal or cross- objection, for enhancement thereof. There is ample evidence to indicate that the deceased was first serving with Internet Global Services Ltd. Just four days before the accident, he was appointed as a Team Leader with "Aegis". In response to the witness summons, P.W.3 Peter appeared before the ::: Uploaded on - 28/09/2021 ::: Downloaded on - 09/10/2021 05:40:53 ::: First Appeal No.1798/2019 :: 7 ::
Tribunal and tendered in evidence certain documents. It is evident from those documents that the deceased had worked with Aegis for three days next before he breathed his last. He was appointed with the said Company at an annual pay of Rs.2,20,000/-. For the three days of service he rendered with the said Company, salary amounting to Rs.2313/- was credited to his Bank Account. The Tribunal, considering the said evidence, has worked out the amount of compensation and granted the same.
8. I do not find any reason to interfere with the impugned award. In the result, the appeal fails. The same is dismissed. Consequently, Civil Applications are disposed of.
The amount in deposit with this Court be paid to the applicants/ claimants with interest accrued thereon.
( R. G. AVACHAT ) JUDGE fmp/-
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