M/S New India Assurance Co Ltd vs Rauf Khan Ibrahim Khan And Ors
2017 Latest Caselaw 5785 Bom

                                                                   FA1514-09.odt
             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD
                       FIRST APPEAL NO. 1514 OF 2009
                                   WITH
                    CIVIL APPLICATION NO. 7151 OF 2009
                                    IN 
                       CIRST APPEAL NO. 1514 OF 2009

        M/s New India Assurance Co. Ltd. ...                  Appellant
        Having its  registered and Head                       (Original 
        Office at 87, M.G. Road, New                          Respondent 
        India Asurance  Building,                             No.2)
        Fort, Mumbai 4001,
        Branch   Office   at   Parbhani   and 
        Division   Office   at   Dr.   Rajendra 
        Prasad Road, Ajay Engg. Compound, 
        Aurangabad   431   005,   through   its 
        Senior Divisional manager.
        VERSUS
1       Rauf Khan s/o Ibrahim Khan,                   ... Respondents
        Age 45 years, Occu: Business & 
        Contractor
        R/o Khadrabad Plot, Parbhani.
2       Javed Khan s/o Rauf Khan, 
        Aged 22 years, Occu: Business
        R/o As above.
Mr. V. N. Upadhye, Advocate for the Appellant
Mrs.A. N.  Ansari, Advocate for Respondent No.1
Mr.  Mohammad Waseemulah, Advocate for Respondent No.2.

                            CORAM         : K. L. WADANE, J.


                            RESERVED ON   : 07.08.2017
                            PRONOUNCED ON : 09.08.2017


J U D G M E N T:    

1. The instant appeal arises out of judgment and

award passed by the Chairman, Motor Accident Claims

Tribunal, Parbhani in Motor Accident Claim Petition No.

FA1514-09.odt 374 of 2007, dated 17.04.2009, by which, the learned

Chairman allowed the claim petition under section 166

of the Motor Vehicles Act and awarded compensation of

Rs.76,000/- alongwith 6% interest from the date of

petition till its realization. Hence, the original

respondent No.2 presented this appeal.

2. Brief facts of the case may stated as follows:

i. Respondent No.1 /original petitioner filed

application claiming compensation of Rs.1,50,000/-

from the owner and insurer of the offending Jeep

bearing registration No. MH-22-H-74. The said Jeep

was driven by one Yunus Khan in rash and negligent

manner. On 04.12.2005, at about 10.00 a.m., when

the jeep came near Bhankheda on Yeldari Shengaon

Road, at that time, driver of the vehicle lost

control over the jeep and gave dash to the road

side tree. In the accident, respondent No.1/

original petitioner sustained fracture injury to

his left leg and other injuries. The accident

occurred due to rash and negligent driving of jeep

by its driver. After the accident, the petitioner

was admitted in Navandar Hospital at Parbhani.

His condition was serious and therefore he could

FA1514-09.odt not lodge report immediately to the concerned

police station. He was indoor patient from

04.12.2005 to 13.05.2005. Thereafter he was under

medical treatment as outdoor patient. He submitted

the report of the accident on 07.02.2006.

ii. The present appellant i.e. the original respondent

No.2 Insurer resisted the claim petition and

denied almost all allegations about occurrence of

the accident. It has denied permanent disability

and rash and negligent driving of the vehicle by

its driver. It is specifically contended that

accident occurred on 04.12.2005, whereas the report

was submitted to the police on 07.02.2006. It shows

that the claim of the petitioner is false. It is

further contended that the petition was filed in

collusion with respondent No.1. With these

allegations, the appellant /original respondent

No.2 prayed to dismiss the claim petition.

iii. In order to establish the claim of compensation,

the petitioner himself entered into witness box. In

addition his oral evidence, he examined PW-2

Shaikh Pasha, one of the occupants in the Jeep and

PW-3 Dr. Navandar with whom he was under medical

FA1514-09.odt treatment. Respondent No.1/ original petitioner

also relied upon the MLC Certificate Exh. 49,

Disability Certificate Exh. 50, Accident Register

Exh. 35, Discharge Card Exh. 37, charge sheet Exh.

46 and statement of witness Shaikh Pasha before

Police at Exh. 47.

3. I have heard the arguments of Mr. V. N.

Upadhye, learned counsel for the appellant, Mrs. A. N.

Ansari, learned counsel for Respondent No.1 and Mr.

Mohammad Waseemulah, learned counsel for Respondent

No.2.

4. Mr. Upadhye, the learned counsel for the

appellant argued the appeal on the following points:

i. Copy of the first information report is not

exhibited and therefore cannot be read in evidence.

ii. No name of the petitioner/ respondent No.1 is

mentioned in any of the police papers including

statement of the witnesses.

iii. Dr. Navandar did not inform the police about

admission of the petitioner in his Hospital.

iv. In view of the terms and conditions of the

FA1514-09.odt policy, risk of the petitioner is not covered.

5. As against this, Mrs. Ansari, the learned

counsel for the respondent No.1/original petitioner

argued that evidence of the petitioner and the

witness Shaikh Pasha is very much clear to establish

that on the date and time of the accident, respondent

No.1/petitioner was travelling in the offending jeep.

6. Considering the rival submissions of the

parties, following points arise for my consideration.

                                   Points                        Findings
1       Whether   respondent   No.1/original                          Yes
        petitioner   proved   that   he     sustained 

grievous injuries caused due to motor vehicle accident which took place on 04.12.2005 on Risod to Parbhani Road.

2       What order ?                                            Appeal is 
                                                               dismissed.

7. I have perused the oral evidence of the above

witnesses. The petitioner/original respondent no.1

deposed that on 04.12.2005, he himself and his

children were going from Risod to Parbhani for

attending function of his daughter in TATA Sumo Jeep

No. MH-22/H-74. Jeep was driven by the Driver Yunus

FA1514-09.odt Khan. He was driving the vehicle in very high speed. At

about 10.00 a.m., driver could not control the said

jeep due to high speed and gave dash to the road side

tree. In the accident, he sustained injury and

therefore, he was taken to the Private Hospital of Dr.

Navandar at Parbhani.

8. Looking to the oral evidence of next witness

Shaikh Pasha, it appears that he also deposed as per

the oral testimony of the petitioner.

9. From the evidence of Dr. Navandar, it appears

that Dr. Navandar gave necessary medical treatment to

the petitioner. He further deposed that the petitioner

was admitted in the Hospital on 04.12.2005 at 4.00 p.m.

On his admission, this witness/Dr. found injuries-

'Central fracture dislocation' to hip joint. He also

issued MLC (Exh.49) and disability certificate Exh. 50.

On perusal of his further evidence, it appears that he

has recorded history of the patient at the time of

admission. MLC Exh.49 shows that the respondent

No.1/petitioner was admitted in the Navandar Hospital

on 04.12.2005 at about 4.00 p.m. with history of road

traffic accident. This witness Dr. Navandar has

clarified that he did not inform to the police about

FA1514-09.odt the accidental admission of the petitioner on the same

day because the petitioner told him that he already

reported the matter to the concerned police and

therefore, he did not inform the police. Reason about

non disclosure of the accident to the police by this

witness is clearly explained and it has come in cross

examination of this witness.

10. The learned counsel for the appellant Insurance

Company is harping on the point that there is no

evidence on record to show that in fact the respondent

No.1/ petitioner was travelling in the jeep. In this

behalf, it is material to make a reference to the

original evidence of PW-2 Shaikh Pasha coupled with his

statement before the police at Exh.47. In his

statement, witness Shaikh Pasha has specifically

mentioned that on 04.12.2005, the petitioner, along

with his children were proceeding to Risod from

Parbhani in a Jeep No. MH-22/H-74. It is further

mentioned that the vehicle met with an accident and

struck to the road side tree, in which petitioner/

respondent No.1 sustained grievous injury. So, from the

record, it is very much clear that the petitioner was

travelling in the jeep.

FA1514-09.odt

11. One another document is also produced on record

at Exh.46, i.e. copy of charge-sheet, wherein, it is

mentioned that in the accident, the injury was caused

to the complainant at his leg and in the earlier

paragraphs, name of complainant is written as Rouf

Khan Ibrahim Khan i.e. the present respondent no.1.

Particulars are given, in which, the name of the

complainant and other persons are mentioned as

witnesses, date, place and time of accident is also

mentioned.

12. One another important document is to be referred

i.e. Accident Register No.03/2005. Its certified copy

is at Exh. 35. From the contents of the the same, it

is crystal clear that the accident was reported on the

same day i.e. on 04.12.2005 to the concerned police

station. Therefore, filing of the complaint at latter

stage has no importance, since the accident was

promptly reported by the driver of the jeep to the

concerned police. From other papers i.e. statement

witness, it is clear that at the relevant time of

accident, respondent no.1/ original petitioner was

travelling in the offending jeep, in which he has

sustained grievous injuries, due to which he is

permanently disabled to the extent of 15%. Hence point

FA1514-09.odt No.1 is answered accordingly.

13. Looking to the reasons recorded by learned

Chairman, Motor Accident Claims Tribunal, the learned

Chairman has taken into consideration the evidence on

record properly and has rightly awarded the amount of

compensation. In view of the above, there is no

substance in the appeal. Therefore, the appeal is

liable to be dismissed and accordingly it is dismissed.

No order order as to costs.

14. In view of disposal of the appeal, pending civil

application also stands disposed of.

(K. L. WADANE, J.)

After pronouncement of the judgment, Mrs. Ansari, learned counsel appearing for respondent No.1 submits that at the time of presentation of the appeal, the Appellant/Insurance Company has deposited certain amount of compensation in this court. Therefore, respondent No.1 is permitted to withdraw the amount of compensation and statutory amount deposited in this court alongwith interest accrued thereon.

(K. L. WADANE, J.) JPC