Icici Lombard General Insurance ... vs Sunita Ramu Bhosale And Others
2016 Latest Caselaw 17 Bom

                                   -:(1):-
                                                                                  1632

       IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  BENCH AT AURANGABAD




                                                                           
                 FIRST APPEAL NO.: 1632 OF 2013




                                                   
                                             ***

      ICICI Lombard General Insurance
      Company Ltd., Through it's Legal
      Manager at Adalat Road,




                                                  
      Aurangabad.                                   ...      APPELLANT

           VERSUS

      1. Sunita S/o Ramu Bhosale,




                                            
         Age: about 30 years, Occu.
         Household, R/o Sureshnagar,
                             
         Newasa, Tq. Newasa, Dist.
         Ahmednagar.
                            
      2. Akash S/o Ramu Bhosale,
         Age: about 04 years, Occu. Nil,
         R/o. Sureshnagar, Newasa Tq. Newasa,
         Dist. Ahmednagar.
      

      3. Gayatri D/o Ramu Bhosale,
         Age: about 03 years, Occ. Nil,
   



         R/o. Sureshnagar, Newasa Tq. Newasa,
         Dist. Ahmednagar.

      4. Anjali D/o Ramu Bhosale,
         Age: about 8 years, Occ. Nil,





         R/o Sureshnagar, Newasa Tq. Newasa,
         Dist. Ahmednagar.

      5. Datta S/o Ashru Waghulkar,
         Age: Major, Occu.: Business,





         R/o Khawadi, newasa Kh.
      `Tq. Newasa, Dist. Ahmednagar.

      6. Dnyaneshwar S/o Laxman Mandane,
         Age: Major, Occ. Driver,
         R/o Newasa Kh., Madhyameshwar Nagar,
         Tq. Newasa, Dist. Ahmednagar.    ...                RESPONDENTS
                                  ***

      Mr. A. G. Choudhari, Advocate for the Appellant.
      Mr. S. S. Kotkar, Advocate for the Respondent Nos.1 to 4.
                                     @@@



    ::: Uploaded on - 29/02/2016                   ::: Downloaded on - 31/07/2016 06:32:43 :::
                                    -:(2):-
                                                                                      1632

                        CORAM:-              T. V. NALAWADE, J.
                        DATED:-              24th FEBRUARY, 2016.




                                                                               
                                                      
      JUDGMENT:

1. The appeal is filed by insurance company to

challenge the judgment and Award of claim petition No.288

of 2009 which was pending before Claims Tribunal,

Shrirampur, District Ahmednagar. Both sides are heard.

2.

The claim was filed in respect of death of one Ram

Dinkar Bhosale who died in motor vehicle accident on 23 rd

March, 2009. The accident took place at about 09.30 p.m.

on Ahmednagar - Aurangabad road within local jurisdiction

of Newasa Police Station. The claim was filed by the widow

and minor issues of the deceased.

3. It is the case of the claimants that the deceased was

a pedestrian and Maroti Van No.MH-14-AH-3652 gave dash

to the deceased from backside and the accident took

place. It is their case that the Respondent No.2

Dnyaneshwar was driving the offending vehicle and the

offending vehicle was owned by Respondent No.1. This

vehicle was insured with Respondent No.3, appellant. It is

the case of the claimants that the accident took place due

to the fault of the driver of the offending vehicle. It is case

-:(3):-

of claimants that the deceased was working in hotel from

Vadala Bharoba, Tahsil Newasa and he was preparing

Tandori Roti in the hotel and he was earning Rs.4,500/- per

month. It is contended that in future he would have

earned more amount and there is loss of dependency. The

age of the deceased is given as 35 years. Compensation

of Rs.7 Lakh was claimed.

4.

Respondent No.1 and 2 driver and owner filed written

statement. The driver admitted that he was on driver's

seat at the relevant time but he contended that it was not

his fault. Alternatively, it was contended that the vehicle

was insured with Respondent No.3 and the Respondent

No.3 is bound to indemnify the owner.

5. Insurance company filed written statement and

contested the matter. It denied every thing. It contended

that the claimants need to prove each and every

contention. Alternatively, it was contended that there was

no fault of the driver of the offending vehicle and as

deceased all of a sudden tried to cross the toad, accident

took place. It is contended that there is possibility that

there is collusion between the claimants and the owner of

the offending vehicle and false record of case is prepared

-:(4):-

against the Respondent No.2, driver.

6. Before the Tribunal the widow of the deceased gave

evidence. She has no personal knowledge regarding the

accident. The claimants placed reliance on police papers.

It appears that in respect of the accident dated 23 rd March,

2009 report was given on 24 th March, 2009 and initially it

was informed that unknown vehicle had given dash to the

deceased. The spot Panchanama shows that there were

marks of tyre showing that brakes were applied and the

vehicle had dashed against divider also. Thus, motor

vehicle was involved in the accident. It is not disputed that

during investigation it revealed that the vehicle of

Respondent No.1 was involved in the accident.

Accordingly, statement of Respondent No.1 was recorded

by police and then charge sheet was filed against

Respondent No.2. Such written statement is also filed by

Respondent Nos.1 and 2. It can be said that after few

months, the vehicle of Respondent No.1 was traced and

then the charge sheet was filed by police. Only due to this

circumstance, inference is not possible that the police

prepared false record and there is collusion between the

claimants and Respondent No.1. One Rajane, a police

-:(5):-

personnel working in the aforesaid police station is

examined, as the investigating officer is not alive. In his

evidence, he has stated that after investigation it revealed

that vehicle of Respondent No.1 was involved in the

accident and charge sheet was filed against Respondent

No.2. There is the record of such nature. The learned

counsel, for insurance company submitted that the

offending vehicle was not seized and Panchanama of that

vehicle was not prepared and this circumstance creates

doubt about the police papers. It is true that such

Panchanama is not produced on record by claimants but

the insurance company has also not brought on record

anything to show that such investigation was not made or

that the vehicle was not plying on that road at the relevant

time. When the owner himself is admitting that his vehicle

met with the accident and there is nothing on record to

infer that there is collusion between the owner and

claimants, it is not possible to accept the contention of the

insurance company that the vehicle of Respondent No.1

was not involved in the accident.

7. On the point of quantum of compensation, it can be

said that the Award is on lower side. When the accident

-:(6):-

      (i)      Appeal is dismissed.





                                    -:(7):-


      (ii)     The amount, if any, lying in this court is to be