Bombay High Court
Hdfc Ergo General Insurance Co. ... vs Varsha Nagorao @ Nagesh Navghare ... on 21 September, 2017
Bench: P.R. Bora
1 FA NO.3182/2016 & 3180/2016
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.3182 OF 2016
HDFC ERGO General Insurance Co.Ltd.
6th Floor, Leela Business Park,
Andheri Kurla Road, Andheri (East)
Mumbai 400 059
Through its Branch Manager / Authorized
Signatory, at Aurangabad.
...APPELLANT
(Orig.Resp.No.3)
VERSUS
1. Chandrabhan s/o Vithalrao Navghare,
Age 34 years, Occupation: Business,
R/o. Babhulgaon, Taluka Vasmat,
District Hingoli.
2. Chairman,
Suryakanta Mahila Bachat Gat,
Satephal, Taluka Basmat,
District Hingoli.
...RESPONDENTS
(Resp.Nos.1 - Orig.Claimant
(No.2 Orig.Respdt.no.1)
...
Shri Mohit Deshmukh, Advocate, h/f Mr.
S.G.Chapalgaonkar, Advocate, for appellant.
Shri V.D.Salunke & Shri S.V.Kuptekar, Advocate for
respondent no.1.
Shri S.B.Ghatol, Advocate for respondent no.2.
...
::: Uploaded on - 22/09/2017 ::: Downloaded on - 26/09/2017 01:18:07 :::
2 FA NO.3182/2016 & 3180/2016
FIRST APPEAL NO.3180 OF 2016
HDFC ERGO General Insurance Co.Ltd.
6th Floor, Leela Business Park,
Andheri Kurla Road, Andheri (East)
Mumbai 400 059
Through its Branch Manager / Authorized
Signatory, at Aurangabad.
...APPELLANT
(Orig.Resp.No.3)
VERSUS
1. Varsha w/o Nagorao @ Nagesh Navghare,
Age 25 years, Occupation: Household.
2. Hanuman s/o Nagorao @ Nagesh Navghare,
Age 6 years, Occupation Education.
3. Gayatri d/o Nagorao @ Nagesh Navghare,
Age 4 years, Occupation: Nil.,
4. Pralhad s/o Bayaji Navghare,
Age 52 years, Occupation: Agriculture,
5. Trishala w/o Pralhad Navghare,
Age 52 years, Occupation: Agriculture,
All R/o. Babhulgaon, Taluka Vasmat,
District Hingoli.
6. Chairman,
Suryakanta Mahila Bachat Gat,
Satephal, Taluka Basmat,
District Hingoli.
...RESPONDENTS
(Resp.Nos.1 to 5 - Orig.Claimants)
(No.6- Orig.Respdt.no.1)
...
::: Uploaded on - 22/09/2017 ::: Downloaded on - 26/09/2017 01:18:07 :::
3 FA NO.3182/2016 & 3180/2016
Shri Mohit Deshmukh, Advocate, h/f Mr.
S.G.Chapalgaonkar, Advocate, for appellant.
Shri V.D.Salunke, Advocate, for respondent no.1 to 4.
Shri S.B.Ghatol, Advocate for respondent no.6.
...
CORAM: P.R. BORA, J.
***
Date of reserving the judgment:17/07/2017
Date of pronouncing the judgment:21/09/2017
***
JUDGMENT:
1. Since both these appeals arise out of one
accident, the common arguments were heard in both these
appeals and I deem it appropriate to decide both the
appeals by common reasoning.
2. First Appeal No.3182/2016 is filed against the
judgment and award passed in MACP No.43/2013 decided
on 16th of October, 2015, by the Motor Accident Claims
Tribunal at Basmath, whereas Appeal No.3180/2016 is
filed against the judgment and order passed in MACP
No.42/2013 decided on 14th of October, 2015, by the
same Motor Accident Claims Tribunal. Both the appeals
4 FA NO.3182/2016 & 3180/2016
are filed by the Insurance Company with whom the alleged
offending vehicle was insured.
3. The accident which gave rise for filing the
aforesaid two claim petitions had occurred on 29th of
August, 2013. It was the case of the claimants in the
aforesaid petitions that on 29th of August, 2013, when
deceased Nagorao Pralhad Navghare and Chandrakant
Vithalrao Navghare were proceeding from the side of
Vasmath towards Parbhani on the Hero Honda Motor
Cycle bearing registration No.MH-38-N-1150, were dashed
by a tractor bearing registration No.MH-38-B-3810 and in
the accident so happened, Nagorao died on the spot
whereas Chandrakant was severely injured. Deceased
Nagorao was plying the motor cycle and Chandrakant was
the pillion rider. The aforesaid tractor is owned by the
present respondent no.6 in First Appeal No.3180/2016 who
is respondent no.2 in First Appeal No.3182/2016 and at
the relevant time was insured with the appellant Insurance
Company which has filed both the present appeals. It
was alleged by the claimants in both the aforesaid
petitions that the alleged accident happened because of
5 FA NO.3182/2016 & 3180/2016
negligence on the part of the driver of the offending tractor
and they had, therefore, claimed the compensation from
the owner and insurer of the said tractor. The driver of
the said tractor was admittedly not made party to either of
the claim petitions. The owner of the offending tractor
though appeared in the matter did not file his written
statement and both the petitions were adjudicated without
his written statement. The Insurance Company had filed
its written statement in both the petitions and resisted
both the petitions on various grounds. The foremost
ground raised by the Insurance Company was that the
offending tractor was not involved in the alleged accident
and in connivance with the owner of the said tractor and
the Police machinery, the same was falsely involved in the
said accident. The petition was also opposed on
quantum and breach of policy condition by the insured.
4. In both the claim petitions, oral evidence of the
claimants in the respective petitions was adduced and the
Police papers pertaining to the accident in question were
filed on record. The Insurance Company did not adduce
any evidence. The learned Tribunal, after having
6 FA NO.3182/2016 & 3180/2016
assessed the oral and documentary evidence adduced by
the claimants in the respective petitions, partly allowed
both the petitions and made the amount of compensation
determined in the respective claim petitions payable jointly
and severally by the owner and insurer of the offending
tractor. Aggrieved thereby, the Insurance Company has
preferred the present appeals.
5. Shri Mohit Deshmukh, learned Counsel
appearing for the appellant Insurance Company in both the
appeals, assailed the impugned judgment and award
mainly on the ground that the Tribunal has wrongly held
the involvement of the offending tractor in occurrence of
the alleged accident to have been proved. Learned
Counsel submitted that from the material on record it is
explicit that the offending tractor has been falsely involved
in the alleged accident. The learned Counsel submitted
that the first information report was lodged on 29th of
August, 2013 by one Trimbak Limbaji Navghare against
unknown vehicle. The learned Counsel further
submitted that though the Police has filed the chargesheet
against the driver of the said vehicle in relation to the
7 FA NO.3182/2016 & 3180/2016
accident in question, the entire chargesheet nowhere
reveals as to how the offending tractor came to be
involved in the alleged accident, on whose and what
information the Police reached to the conclusion that the
offending tractor was involved in the alleged accident.
The learned Counsel submitted that a specific defense was
raised by the Insurance Company in its written statement
that in connivance with the owner of the tractor and the
police machinery, the offending tractor has been falsely
shown to have been involved in the alleged accident
though, in fact, the same was not at all involved in the
said accident. The learned Counsel submitted that all
these aspects are not considered by the Tribunal which has
resulted in passing erroneous award by the Tribunal.
6. Learned Counsel further submitted that the
amount of compensation as has been determined by the
Tribunal in both the petitions is exorbitant and without any
cogent and sufficient evidence therefor. The learned
Counsel further submitted that the Tribunal has also failed
in considering the another plea raised by the Insurance
8 FA NO.3182/2016 & 3180/2016
Company that the alleged accident, according to the story
put forth by the claimants themselves, was head on
collision accident and, as such, in no case, the entire
negligence could have been attributed on the part of the
driver of the tractor. The learned Counsel clarified that
all above submissions are the alternate submissions,
however, the impugned award is mainly challenged on the
ground of involvement of the offending vehicle in
occurrence of the alleged accident.
7. Learned Counsel appearing for the respondents
supported the impugned judgment and award. The
learned Counsel for the respondents submitted that the
claimants have sufficiently proved the involvement of the
offending tractor and have also proved that the alleged
accident happened because of rash and negligent driving
of the driver of the said tractor. The learned Counsel
submitted that all Police papers pertaining to the alleged
accident are placed on record by the claimants. The
learned Counsel further submitted that the Police has
prosecuted the driver of the offending tractor in relation to
the alleged accident for the offenses punishable under
9 FA NO.3182/2016 & 3180/2016
Sections 304-A, 279, 337, 338 of IPC. The learned
Counsel submitted that the tractor owner has not denied
the involvement of the tractor in the alleged accident.
The learned Counsel further submitted that though the
Insurance Company had raised the plea that the offending
tractor has been falsely involved in the alleged accident in
connivance of the owner of the tractor and the Police
machinery, the said objection has not been substantiated
by the Insurance Company by leading any positive
evidence therefor. The learned Counsel further
submitted that the Tribunal has passed a well reasoned
order even on the point of negligence as well as on
quantum and no interference is, therefore, warranted in
the impugned judgment and award. The learned
Counsel, therefore, prayed for dismissal of both the
appeals.
8. I have carefully considered the submissions
made on behalf of the learned Counsel appearing for the
respective parties. I have also perused the impugned
judgment, the evidence on record and the other material
placed on record.
10 FA NO.3182/2016 & 3180/2016
9. As noted earlier, the impugned awards are
challenged mainly on the ground that though the claimants
have failed in proving the involvement of the offending
tractor in occurrence of the alleged accident, the Tribunal
has held the involvement of the said tractor to have been
proved.
10. In its written statement filed in both the
claim petitions, the Insurance Company though has raised
a specific defense that the tractor insured with it bearing
registration No.MH-38-B-3810 was falsely involved in
occurrence of the alleged accident in connivance with the
owner of the said tractor and the Police machinery, to
substantiate the defense so raised, the Insurance
Company has admittedly not adduced any oral evidence.
As I could gather from the arguments of the learned
Counsel appearing for the Insurance Company, his entire
thrust was to bring to my notice the facts which have
come on record through the testimony of Chandrabhan,
the claimant in M.A.C.P.No.43/2013.
11 FA NO.3182/2016 & 3180/2016
11. In so far as M.A.C.P.No.42/2013 is concerned,
the claimants in the said claim petition had relied upon the
Police papers pertaining to the accident in question so as
to prove the involvement of the tractor in the alleged
accident as well as the negligence of the driver of the said
tractor resulting in causing the alleged accident. The
claimant no.1 in M.A.C.P.No.42/2013 who deposed in the
said matter on behalf of the claimants was admittedly not
an eye witness to the alleged accident nor she was having
any personal knowledge about the occurrence of the
alleged accident. In the circumstances, as I noted
earlier, the reliance of the claimants in Claim Petition
No.42/2013 was on Police papers pertaining to the alleged
accident.
12. In so far as the Claim Petition No.43/2003 is
concerned, the claimant in the said petition himself was
the victim of the alleged accident and, as such, his
testimony certainly assumes importance. Taking me
through the evidence of said Chandrabhan, it was argued
by Shri Deshmukh, learned Counsel appearing for the
appellant Insurance Company that there are material
12 FA NO.3182/2016 & 3180/2016
contradictions in the evidence of the said witness which
create reasonable doubt about the involvement of the
offending tractor in occurrence of the alleged accident.
On perusal of the evidence of Chandrabhan, it is noticed
that though in his examination in chief he has deposed
that he had seen the offending tractor and has also stated
registration number of the said tractor, in his cross
examination he has come out with a different version and
has deposed that he came to know about the offending
vehicle two days after the accident. In the cross
examination, said Chandrabhan has further stated that one
Bhagwan Chandoji Navghare informed him about the
details of the said vehicle which gave dash to their motor
cycle. Admittedly, said Bhagwan Navghare has not been
examined as a witness by Chandrabhan nor said Bhagwan
has been examined as witness in M.A.C.P.No.42/2013.
13. It was further sought to be canvassed by Shri
Deshmukh, learned Counsel, that the further fact stated by
Chandrabhan in his cross examination that Bhagwan
Navghare informed him that the owner of the tractor took
the said tractor on Supurtnama makes it clear that if at all
13 FA NO.3182/2016 & 3180/2016
said Bhagwan would have given any such information to
Chandrabhan, it may have been given by him only after
10th of October, 2013. Learned Counsel brought to my
notice that the owner of the tractor got released the
offending tractor on Supurtnama on 10.10.2013. This
argument of the learned Counsel is difficult to be accepted.
It is true that the aforesaid fact has been stated by
Chandrabhan in his cross examination that Bhagwan
informed him that the owner of the tractor took the tractor
on Supurtnama from the Judicial Magistrate, First Class,
Basmath, however, the same cannot be co-related with his
earlier statement that Bhagwan informed the details of the
vehicle which gave dash to their motor cycle and on that
basis no such inference can be drawn that said Bhagwan,
if at all had given any information to Chandrabhan, the
same was given by him only after 10.10.2013 and,
therefore, to draw further inference that till that date
Chandrabhan was not aware of the vehicle involved in the
alleged accident. The chargesheet filed against the driver
of the offending tractor in relation to the alleged accident
is filed on record. The chargesheet reveals that the
statement of Chandrabhan was recorded by the Police on
14 FA NO.3182/2016 & 3180/2016
14.9.2013 and in the said statement Chandrabhan has
disclosed to the Police the registration particulars of the
tractor alleging the same to have been involved in the
accident in question. It, therefore, cannot be accepted
that Chandrabhan came to know about the involvement of
the offending tractor only after 10.10.2013.
14. As has been stated by Chandrabhan in his
testimony before the Tribunal, he had seen the offending
tractor coming from the opposite direction and further that
the same was being driven in a rash and negligent manner
and at an excessive speed and it gave dash which resulted
in causing the alleged accident. As was further stated by
said Chandrabhan, he became unconscious on the spot
itself after he was injured in the alleged accident and he
was not even aware as to who admitted him in the hospital
by removing him from the spot of occurrence. In such
circumstances, even if it is accepted that it was possible
for Chandrabhan to see the vehicle which gave dash to
their motor cycle, it appears difficult to digest that the
registration number of the said vehicle was also noticed by
him and further that he kept the said number in his
15 FA NO.3182/2016 & 3180/2016
memory and reproduced the same after about fifteen days
of the alleged occurrence when his statement was
recorded by the Police.
15. The question also arises as to why Chandrabhan
did not lodge any report with the Police when he had
regained the consciousness on the next day of the alleged
incident.
16. The immediate next question, however,
arises whether merely because the evidence of
Chandrabhan does not appear to be dependable and
reasonable doubts are created about the facts stated by
him, can such a conclusion be definitely recorded that the
offending vehicle was not involved in the alleged accident
in light of the fact that the Police has filed the chargesheet
against the driver of the said tractor and that in the crime
so registered in relation to the said accident the offending
tractor was seized by the Police and was got released by
the owner of the said tractor on Supurtnama. Filing of a
chargesheet against the driver of the offending tractor,
seizure of the said tractor in the crime registered in that
16 FA NO.3182/2016 & 3180/2016
regard and the release of the said tractor on Supurtnama
executed by the owner of the said tractor, prima facie,
estatablish the involvement of the said tractor in
occurrence of the alleged accident. It also cannot be
ignored that the owner whose tractor is involved in the
alleged accident, though entered in his appearance before
the Tribunal, did not file his written statement and has
allowed the claim petition to be decided without his written
statement. If it was the case of the appellant Insurance
Company that the offending tractor came to be involved in
connivance with the owner of the said tractor and the
Police machinery, it was incumbent on its part to
substantiate the said allegation by bringing on record
some evidence in that regard suggesting such
probabilities. Some admissions obtained in the cross
examination of the claimant in one petition are not
sufficient to uphold the objection raised by the Insurance
Company. It was quite possible for it to adduce the
evidence of any of its officer conversant with the facts of
the said case and, in such circumstances, could have also
examined the investigating officer who filed the chargesheet.
In absence of any such attempt made by the Insurance
17 FA NO.3182/2016 & 3180/2016
Company. It is difficult to record any such finding that
the Police filed a concocted chargesheet falsely showing
involvement of the offending tractor in the alleged
accident.
17. The next question which falls for my
consideration is whether there is any substance in the
objection raised by the appellant Insurance Company that
the Tribunal has failed in not considering the contention
raised by the appellant Insurance Company as regards to
the contributory negligence on the part of the deceased in
occurrence of the alleged accident.
18. Shri Deshmukh, learned Counsel for the
Insurance Company, submitted that the evidence on
record clearly suggests that the alleged accident was head
on collision between the tractor and the motor cycle of the
deceased. Learned Counsel submitted that in head on
collision accidents, no hundred per cent negligence can be
attributed on the part of any one of the vehicle unless
there is clinching evidence in that regard. Learned Counsel
submitted that it has come in examination in chief itself of
18 FA NO.3182/2016 & 3180/2016
the claimant in M.A.C.P.No.43/2013 that it was a head on
collision accident. He has deposed that, " R;kus vkeP;k eksVj
lk;dyyk leksjkleksj tksjkph /kMd fnyh-" The learned Counsel
submitted that, in such circumstances, the Tribunal must
have held that the deceased motor cyclist Nagorao also
contributed to the alleged accident in equal proportion.
Learned Counsel, therefore, prayed for modifying the
finding recorded by the Tribunal to the aforesaid extent
and, consequently, to reduce the liability caused on the
owner and insurer of the offending tractor in that
proportion.
19. Learned Counsel appearing for the original
claimants has, however, submitted that the Tribunal has
rightly recorded a finding on the aspect of negligence and
has correctly held the Driver of the offending tractor solely
responsible for occurrence of the alleged accident.
Learned Counsel submitted that in his examination in chief
Chandrabhan, claimant in M.A.C.P. No.43/2013 has
specifically deposed that deceased Nagesh was plying the
motor cycle carefully, at moderate speed and from his left
19 FA NO.3182/2016 & 3180/2016
side. Learned Counsel submitted that there is no
contrary evidence to disbelieve the fact so stated by
Chandrabhan. Learned Counsel submitted that the
Insurance Company has not adduced any evidence so as
to bring on record any possibility of any negligence on the
part of the deceased in occurrence of the alleged accident.
Learned Counsel submitted that the scene on the spot of
occurrence also reveals that the motor cycle was being
driven from the left side of the road and it is not the case
that the accident happened at the center of the road or at
the midst of the road.
20. The Insurance Company has admittedly
not adduced any oral evidence, however, that cannot be a
ground for outrightly rejecting the plea so raised by the
Insurance Company. As was pointed out by the learned
Counsel appearing for the appellant Insurance Company,
the injured in the said accident himself has deposed in his
examination in chief itself that, ''V~WDVjus vkeP;k eksVj lk;dyyk
leksjkleksj tksjkph /kMd fnyh-** The spot panchanama drawn of
the alleged accident reveals that the road on which the
20 FA NO.3182/2016 & 3180/2016
accident happened was a tar road having width of 20 feet
and there was a Kaccha road on both the sides of the tar
road. The spot of the accident as shown in the spot
panchanama is on the tar road at the distances of seven
feet from the northern edge of the said road.
Surprisingly, the spot panchnama nowhere reveals that
blood was noticed around the spot which is shown to be
the spot of the accident. Considering the statement of
the injured in his examination in chief reproduced
hereinabove, a reasonable inference can be drawn that it
was a head on collision accident. There is further reason
to believe that the motor cyclist did not make any attempt
to take his motor cycle at the edge of the road on his left
side or to take it on Kaccha road even after noticing that a
tractor is coming from the opposite direction in a high
speed and was being driven in a rash manner by the driver
of the said tractor. In the circumstances, there apears
substance in the submission made on behalf of the
appellant Insurance Company that some negligence has to
be attributed on the part of the deceased motor cyclist.
It, however, cannot be accepted that the deceased motor
cyclist was responsible for occurrence of the alleged
21 FA NO.3182/2016 & 3180/2016
accident in equal proportion to that of the negligence of
the tractor driver. The greater negligence in causing the
alleged accident is definitely on the part of the driver of
the tractor.
21. After having considered the evidence on record
in this regard, according to me, the proportion of
negligence on the part of the deceased motor cyclist can
be determined to the extent of 30 per cent. I hold
accordingly. The finding recorded by the learned Tribunal
in this regard in both the impugned judgments and awards
needs to be modified to the aforesaid extent.
22. Nextly, though it was sought to be contended
by the learned Counsel appearing for the appellant
Insurance Company that the amount of compensation as
determined by the Tribunal is on higher side, after having
perused the evidence in that regard adduced by claimants
in both the Claim Petitions, it does not appear to me that
the Tribunal has committed any error in determining the
amount of compensation in both the Claim Petitions. I,
therefore, do not see any reason to cause any interference
22 FA NO.3182/2016 & 3180/2016
in the amount of compensation as determined by the
learned Tribunal. However, it has to be further stated
that in view of the finding recorded by this Court on the
point of negligence, the amount of compensation liable to
be paid by the owner and Insurer of the offending tractor
would be decreased by 30 per cent. To that extent, the
impugned awards will have to be modified. In view of the
above, following order is passed:
ORDER
1. The claimants in Motor Accident Claim Petition
No.42/2013 are held entitled to receive the compensation
of Rs.9,28,620/- inclusive of the No Fault Liability
compensation jointly and severally from respondent nos. 1
and 2 in the said Claim Petition together with the interest
thereon at the rate of 9 per cent per annum from the date
of filing of the petition till realization of the said amount.
2. Save and except the decrease in the amount of
compensation as specified in clause (1) above, remaining
part of the award passed in Motor Accident Claim Petition
23 FA NO.3182/2016 & 3180/2016
No.42/2013 is maintained as it is.
3. The claimant in Motor Accident Claim Petition
No.43/2013 is entitled to the total compensation of
Rs.5,19,050/- inclusive of No Fault Liability compensation
jointly and severally from respondent nos. 1 and 2 in the
said Claim Petition with interest thereon at the rate of 9
per cent per annum from the date of filing of the Claim
Petition till realization. Save and except the decrease in
the amount of compensation as specified above, the
remaining part of the award passed in Motor Accident
Claim Petition No.43/2013 is maintained as it is.
4. The amount payable to the claimants in both
the aforesaid Claim Petitions as per the award modified by
this Court in the present appeals be paid to the claimants
from out of the amount deposited by the Insurance
Company in this Court and after disbursement of the said
amount, the balance amount be refunded to the appellant
Insurance Company.
5. Both the appeals stand partly allowed in the
24 FA NO.3182/2016 & 3180/2016
aforesaid terms.
6. Modified awards be drawn accordingly.
7. Pending Civil Applications, if any, stand
disposed of.
(P.R.BORA)
JUDGE
...
AGP/3182-16 and 3180-16fa
