Bombay High Court
The Br. Manager, The United India ... vs Rashidabano Wd/O Raheman Khan ... on 24 August, 2017
Bench: S.B. Shukre
(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
(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 :
(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
(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
(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
(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
(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
(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
(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
(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
(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.
(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
