United India Insuracne Co. Ltd. ... vs Smt. Pansheela Indraraj Borkar & ...
2017 Latest Caselaw 6374 Bom

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

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-

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.

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

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.

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

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)

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)