Bombay High Court
The India Insurance Now The New ... vs Govind Kanhayalal Mandhane And ... on 12 July, 2017
Bench: P.R. Bora
1 FA.2077 OF 2016
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
908 FIRST APPEAL NO. 2077 OF 2016
The India Insurance,
Now, The New India Assurance Co. Ltd.,
Through its Divisional Manager,
D.O. No.1, Adalat Road, Aurangabad
Suryakant Sahebrao Makhare
Age : 55 years, Occu : Service,
R/o. Aurangabad .. APPELLANT
( Orig. Respondent No.2 )
Versus
1. Govind s/o Kanhayalal Mandhane
Age : 41 years, Occu : Agriculture,
R/o Patrud, Tq. Majalgaon,
Dist. Beed
2. Girish s/o Govind Mandhane
Age : 22 years, Occu : Agriculture,
R/o Patrud, Tq. Majalgaon,
Dist. Beed
3. Kum. Shradha d/o Govind Mandhane
Age : 19 years, Occu : Household,
R/o Patrud, Tq. Majalgaon,
Dist. Beed.
4. Siddheshwar s/o Prakash Gaikwad
Age : 42 years, Occu : Agri & Driver,
R/o. Kendepimpri, Tq. Wadwani,
Dist. Beed ...RESPONDENTS
(R-1 to 3 Org. Claimants )
(R-4 Org. R-1)
..........
Mr M.M. Ambhore, learned Counsel for appellants
Mr S.J. Salunke, learned Counsel for Respondent Nos.1 to 3
.............
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2 FA.2077 OF 2016
CORAM : P.R. BORA, J.
DATE : JULY 12, 2017.
ORAL JUDGMENT :
1. The present appeal is filed against the Judgment and
Award dated 28.01.2015 passed by the Motor Accident Claims
Tribunal, at Majalgaon in Motor Accident Claim Petition No.05/2010.
2. The aforesaid claim petition was filed by the present
respondent nos.1 to 3 seeking compensation on account of death of
one Radhabai W/o. Govind Mandhane alleging that, she died in a
vehicular accident having involvement of a rickshaw bearing
registration No.MH-23-C-8293 insured with the appellant Insurance
Company. It was the case of the appellants that, respondent no.1
Govind Kanhayalal Mandhane along with his deceased wife Radhabai
were travelling by an auto rickshaw bearing registration No. MH-44-
4235. It was the further contention of the appellants that, the
rickshaw bearing registration No. MH-23-C-8293 coming from the
opposite direction in a high speed gave a dash to their auto rickshaw
and in the accident so happened Radhabai was severely injured and
ultimately died as a result of the injuries caused to her in the said
accident. The claimants had alleged that, the accident in question
happened because of the rash and negligent driving of the driver of
the auto rickshaw bearing registration No.MH-23-C-8293. The
respondents No. 1 to 3 therefore had claimed the compensation of
Rs.5,00,000/- from the driver, owner and insurer of the said auto
rickshaw.
3. The petition was resisted by the appellant Insurance
3 FA.2077 OF 2016
Company on various grounds. A specific defence was raised by the
appellant Insurance Company in its written statement that, the
rickshaw insured with it bearing registration No.MH-23-C-8293 was
not at all involved in the alleged accident and it was falsely shown to
have been involved in the said accident.
4. In order to substantiate the claim raised by them, the
original claimant no.1 Govind himself deposed before the tribunal.
The claimants did also rely upon the police papers pertaining to the
accident in question, certified copies of which were placed on record
of the tribunal.
5. The learned Tribunal after having assessed the oral and
documentary evidence brought on record before it held the
involvement of auto rickshaw bearing registration no.MH-23-C-8293
to have been proved. The tribunal further held the accident to have
occurred because of the rash and negligent driving of the driver of
the said auto rickshaw and therefore held the owner and insurer of
the said auto rickshaw liable to pay the amount of compensation to
the claimants as was determined by it. Aggrieved by, the appellant
Insurance Company has filed the present appeal.
6. Shri. Ambhore, learned Counsel appearing for the appellant
Insurance Company assailed the impugned judgment mainly on the
ground that, despite there being any evidence showing involvement
of the auto rickshaw insured with the present Insurance Company,
the owner and and insurer of the said auto rickshaw have been
wrongly held responsible by the learned tribunal to pay the amount
of compensation to the claimants. The learned Counsel inviting my
4 FA.2077 OF 2016
attention to the First Information Report lodged by the claimant no.1
Govind submitted that, claimant no.1 had not disclosed the number
of the auto rickshaw insured with the appellant Insurance Company
in the FIR. The learned Counsel further submitted that, even in the
spot panchanama the number which has been stated of the auto
rickshaw alleging that the same was involved in the occurrence of the
alleged accident is not of the auto rickshaw insured with the
appellant Insurance Company. The learned Counsel submitted that,
subsequently in collusion with the police persons fraudulently the
involvement of the rickshaw insured with the present Insurance
Company was shown in occurrence of the alleged accident and
charge - sheet was also filed against the driver of the said auto
rickshaw. The learned Counsel submitted that, no person can state a
full number of auto rickshaw wrongly in the FIR, which was filed by
him immediately after the occurrence of the accident. The learned
Counsel submitted that, supplementary statement given by the
complainant correcting the number of the auto rickshaw is wholly
untrustworthy since he has not provided any reason as to why he did
provide the wrong number while lodging the FIR pertaining to the
accident in question. The learned Counsel submitted that, the
statement on the basis of which the rickshaw insured with appellant
Insurance Company came to be involved is absolutely untenable. The
learned Counsel submitted that, since the claimants failed in
establishing the involvement of rickshaw insured with appellant
Insurance Company in occurrence of the alleged accident, no award
could have been passed against the owner and insurer of the said
auto rickshaw.
7. The learned Counsel further submitted that, the claimants
5 FA.2077 OF 2016
must have made party to the owner and insurer of the auto rickshaw
by which they were travelling when the accident happened and since
they have not made party to the owner and insurer of the said
rickshaw, the petition was liable to be dismissed for non-joinder of
necessary parties. The learned Counsel therefore prayed for setting
aside the impugned Judgment and Award.
8. The learned Counsel appearing for the original claimants
supported the impugned Judgment and Award. The learned Counsel
submitted that, the tribunal has rightly held the driver / owner and
insurer of the auto rickshaw bearing registration no.MH-23-C-8293
responsible in the occurrence of the alleged accident and no
interference is required in the Judgment and Award so passed. The
learned Counsel, therefore, prayed for dismissal of the appeal.
9. I have carefully considered the submissions advanced by
the learned Counsel appearing for the respective parties. I have also
perused the impugned Judgment and other material placed on
record. In so far as the objection raised by the appellant Insurance
Company in regard to non-joinder of necessary parties is concerned,
the same is liable to be rejected at the threshold since it was not the
case of the original claimants that, there was some negligence on the
part of the driver of rickshaw who was driving the rickshaw by which
they were travelling at the relevant time. The claim petition was filed
under Sec.166 of the Motor Vehicles Act and the entire negligence
was attributed by the claimants on the part of the driver of the auto
rickshaw bearing registration no. MH-23-C-8293. In the
circumstances, it was not necessary on the part of the claimants to
make party the owner and insurer of the auto rickshaw as party
6 FA.2077 OF 2016
respondent by which they were travelling when the accident
happened. The objection so raised therefore is liable to be turned
down.
10. The other objection, which has been vehemently pressed by
the appellant Insurance Company, is about the false involvement of
the vehicle insured with it. My attention was invited by the learned
Counsel to the documents of FIR and spot panchanama pertaining to
the alleged accident. It is true that, in the FIR registration number of
the rickshaw insured with the appellant Insurance Company is not
mentioned. Even in the spot panchanama the same is not mentioned.
Though I was primarily convinced that, in the FIR more correct
information was supposed to be given by the person who has lodged
the FIR since it was lodged immediately after occurrence of the
alleged accident and as such some doubt was created as about the
subsequent supplementary statement given by the claimant no.1
showing the involvement of the auto rickshaw insured with the
appellant Insurance Company, when, I perused the evidence on
record, it is apparently revealed that, though in the examination - in -
chief the claimant no.1 has specifically deposed that, he had
committed a mistake in stating the number of the auto rickshaw
while lodging FIR and in the supplementary statement he corrected
the said mistake and disclosed to the police the correct number of the
auto rickshaw, in the cross examination by the appellant Insurance
Company not a single question is asked to the said witness even
remotely suggesting that, the rickshaw which is insured with the
appellant Insurance Company was not involved in the alleged
accident or that the involvement of the said rickshaw has been falsely
and fraudulently shown by the claimants. Admittedly, no evidence
7 FA.2077 OF 2016
was adduced on behalf of the appellant Insurance Company. Thus,
the statement made on oath by claimant no.1 has remained
unchallenged. In absence of any rebuttal to the said statement, it
cannot be said that, the learned tribunal has committed any error in
arriving at the conclusion that the rickshaw insured with the
appellant Insurance Company was involved in the alleged accident. I
deem it appropriate to reproduce the cross - examination of the
claimant no.1 as was taken on behalf of the Insurance Company
ad-verbatim which reads as under :-
^^eyk ejkBh fyfgrk okprk ;srs- ?kVusph fQ;kZn
eh iksfyl LVs'kuyk fnyh gksrh- iksfylkauh ek>s lakx.ksizek.ks
fyghyh o R;kuarj eh R;koj lgh dsyh- rsyxkao rs
ektyxkao jksM nf{k.k mRrj vkgs- rsyxkao ektyxkao jksMoj
lrr vWis fj{ks pkyrkr- vi?kkrkpsosGh eh vi?kkrh fj{kkrp
gksrks- eh vi?kkrxzLr fj{kkr clwu ;sr gksrks- R;kpk uacj
eyk vkBor ukgh- gs Eg.k.ks [kjs ukgh oknkrhr vi?kkr gk
rhu fj{kkr ?kMyk gksrk- vtZnkj dz-2 o 3 gs ek>s eqyxk o
eqyxh vkgsr- eh ek>s e;r iRuhP;k o;kpk o mRiUukpk
dkxni= nk[ky dsys ukghr- xSjvtZnkj dz-1 fl/ns'oj
;kpsdMs okgu ijokuk gskrk fdaok ukgh rs eyk ekghr ukgh-
gs Eg.k.ks [kjs ukgh dh] eh T;k fj{kkr clwu pkyyks gksrks
R;kP;k pqdhus vi?kkr >kyk Eg.kwu foek daiuh ekscnyk
ns.;kl tckcnkj ukgh- gs Eg.k.ks [kjs ukgh dh] vWVks fj{kk
pkydkdMs ijehV uOgrs- gs Eg.k.ks [kjs ukgh dh] ekscnyk
feG.kslkBh [kskVk Dyse nk[ky dsyk vkgs- gs Eg.k.ks [kjs
ukgh dh] vWVks pkydkus foek ikWfylhps vVhps mYya?ku dsys
vkgs- gs Eg.k.ks [kjs ukgh dh] eh vkt [kksVh lk{k nsr vkgs-**
8 FA.2077 OF 2016
11. Considering the nature of the cross - examination, it does
not appear that, any such suggestion was given to the claimant no.1
disputing the involvement of the auto rickshaw insured with the
appellant Insurance Company. No positive evidence was adduced by
the appellant Insurance company to substantiate the defence that, the
auto rickshaw insured with it was not involved in the alleged
accident. Admittedly, the owner of the said auto rickshaw has not
appeared in the matter and not submitted any written statement.
Insurance Company could have examined as its witness the said
owner and the driver to prove its defence that, the said vehicle was
not involved in the alleged accident. Since no such evidence is
brought on record by the Insurance Company, I do not see that, the
tribunal has committed any error in holding the owner and insurer of
the said auto rickshaw responsible for payment of compensation.
12. The learned counsel has relied upon the Judgments of this
Court in First Appeal No.2973 of 2013 (Coram: Shri. A.V.
Nirgude, J.) and in First Appeal No.1921 of 2013 (Coram: Shri.
K.U. Chandiwal, J.) to urge that, insured vehicle was not seized and
there was no panchanama regarding damage to the vehicle.
However, the submission so made deserves to be rejected at the
threshold in premise of the fact that, no such evidence was adduced
by the Insurance Company or no such contention was even raised in
written statement by the Insurance Company. The onus was on the
Insurance Company to bring on record all these facts. When
Insurance Company has failed to bring on record any such evidence,
no fault can be found on the part of the tribunal in arriving at the
conclusion.
9 FA.2077 OF 2016
13. The appeal being devoid any substance, deserves to be
dismissed and is accordingly dismissed, however without any order
as to the costs.
[ P.R. BORA ]
JUDGE
ggp
