Bombay High Court
The Reliance General Insurance ... vs Shobhabai Devidas Padar And ... on 21 April, 2021
Bench: Anil S. Kilor
1 918-FA-2978-19.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 2978 OF 2019
THE RELIANCE GENERAL INSURANCE COMPANY, AURANGABAD
VERSUS
SHOBHABAI DEVIDAS PADAR AND OTHERS
...
Advocate for Appellant : Mr. S. G. Chapalgaonkar
Advocate for Respondents No. 1 to 3 : Mr. Pramod C. Mayure
...
CORAM : ANIL S. KILOR, J.
DATE : 21st APRIL, 2021
ORAL ORDER :-
This is an Appeal preferred by the appellant- Insurance
Company challenging the Judgment and Award, dated 17-10-2013
passed by the Motor Accident Claims Tribunal, Vaijapur, District
Aurangabad, in Motor Accident Claim Petition No. 268 of 2012 (Old
MACP No. 952 of 2011), partly allowing the claim and thereby held the
appellant Insurance company, the owner and the driver of the truck
involved in the accident, jointly and severally liable to pay amount of
compensation to the tune of Rs.21,72,500/- (including the amount of
compensation under Section 140 of Motor Vehicles Act, 1988) with
interest @ 7.5 % per annum from the date of petition till realization of
the entire amount.
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2. I have heard the learned counsels for the respective parties.
3. Brief facts of the present case are that, on 3-11-2010 at
about 8.00 p.m. the deceased Devidas was going to Gangapur from
Bhendala on motorcycle bearing registration No. MH-20-Z-7389. When
he reached near Surbhi Hotel on Aurangabad to Ahmednagar road in the
vicinity of village Bhendala at that time one Truck bearing No. MH-06-
AC-5760 was parked rashly and negligently on the middle of the road
without any signal. All lights including indicator of the said tuck were
switched off. Due to that, the motorcycle of deceased dashed against
that truck from backside and deceased sustained severe injuries and
succumbed to it during medical treatment, on 6-11-2011. The widow of
deceased Devidas and his two sons filed claim petition, claiming
compensation against the insurance company as well as owner and driver
of the truck. The claim of petition was partly allowed by the impugned
Judgment and Award dated 17-10-2013, which is under challenge in the
present appeal.
4. The learned counsel for the appellant Insurance company
submits that from the record it is not clear whether the truck was moving
or it was parked and, therefore, according to him, the findings given by
the learned Tribunal that the truck was parked and because of it the
deceased Devidas gave dashed from the backside of the truck, cannot be
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accepted.
5. It is submitted that from the spot panchnama, it cannot be
said that the truck involved in the accident was not having indicator or
reflector and the same is resulted into accident and in absence of any
such evidence, it cannot be said that the driver of the truck is solely
responsible for this accident.
6. He further submits that it was four lane road and even
though where the truck was allegedly parked on the road, beside that
there was sufficient space available for the deceased Devidas; and, the
said fact is sufficient to hold that the deceased had also contributed
negligence in this matter.
7. It is further submitted that the First Information Report
(FIR) was lodged by one Babasaheb, who is not entered into witness box
to prove the contents of FIR, whereas, the widow who entered into
witness box, she is not the eye witness, and therefore, the story narrated
in the FIR or in the claim petition as regards negligence on the part of
driver of the truck cannot be accepted in absence of any independent
witness. He, therefore, submits that in absence of sufficient evidence to
show that the driver was solely responsible for this accident, the learned
tribunal ought to have looked into the other circumstances and held that
the deceased Devidas had contributed negligence in this matter. In
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support of his contention on contributory negligence,
Mr. Chapalgaonkar, learned counsel for the appellant has placed reliance
on the Judgments, viz - (1) Andhra Pradesh State Road Transport
Corporation and another1, (2) Raj Rani and others Versus Oriental
Insurance Company Limited and others2, and (3) Nishan Singh and
others Versus Oriental Insurance Company Limited3.
8. On the other hand, Mr. Mayure, learned counsel appearing
for the respondents-claimants supports the Judgment and Award
impugned in the present Appeal and states that this is a beneficial
legislation and strict principles of evidence and standards of proof like in
a criminal trial are inapplicable, but standard of proof must be of
preponderance of probabilities.
9. To consider the rival contentions of the parties, I have
perused the record and proceeding and also the Judgment and Award
impugned in the present Appeal.
10. The Hon'ble Supreme Court of India in the case of Sunita
and others Vs.. Rajasthan State Road Transport Corporation and others 4
after considering various judgments of the Apex Court has held thus,
"22. It is thus well settled that in motor accident claim cases,
once the foundational fact, namely, the actual occurrence of
the accident, has been established, then the Tribunal's role
1 (2008) 6 Supreme Court Cases 767
2 (2009) 13 Supreme Court Cases 654
3 (2018) 6 Supreme Court Cases 765
4 2012 (5) Bom. C. R. 285
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would be to calculate the quantum of just compensation if the
accident has taken place by reason of negligence of the driver
of a motor vehicle and, while doing so, the Tribunal would not
be strictly bound by the pleadings of the parties. Notably, while
deciding cases arising out of motor vehicle accidents, the
standard of proof to be borne in mind must be of
preponderance of probability and not the strict standard of
proof beyond all reasonable doubt which is followed in
criminal cases."
11. The record shows that one Babasaheb lodged a report after
the accident, wherein he has specifically stated that the truck bearing No.
MH-06-AC-5760 was parked rashly and negligently on the middle of
road without any signal and all lights, indicator and reflector were
switched off.
12. The oral evidence of claimant No.1 - widow of Devidas is
also on the same line. As against this, after going through the cross-
examination, it is revealed that though while arguing the matter
insurance company has urged that in the spot panchanama, there is no
mention that no reflector or indicator was found, no suggestion to that
effect was put to the witness in the cross-examination. There is nothing
brought in the cross-examination by the insurance company from where
this Court can come to the conclusion that the truck had indicators and
reflectors which are necessary to easily locate the parked vehicle in the
night time. Thus, the submission of the learned counsel for appellant -
Insurance company, that the truck was having indicator or reflector
cannot be accepted.
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13. Further more, it is notable that on contributory negligence,
the insurance company has not led any evidence, which the insurance
company could have led by examining the driver of the truck. Merely
because, the widow was not the eye witness, the oral evidence of the
claimant cannot be discarded.
14. Similarly, the contention of the learned counsel for the
appellant since that the informant Shri. Babasaheb did not entere into
witness box, therefore, the contents of the FIR are not proved, cannot be
accepted in view of the recent Judgment of the Hon'ble Supreme Court of
India, in the case of - Anita Sharma and others Versus New India
Assurance Company Limited and another 5, wherein, it has been held by
the Hon'ble Apex Court that, one needs to be mindful that the approach
and role of courts while examining evidence in accident claim cases
ought not be to find fault with non examination of some best eye
witnesses, as may happen in a criminal trial, but instead should be only
to analyse the material placed on record by the parties to ascertain
whether the claimant's version is more likely than not true.
15. As regards the contention of the learned counsel for the
appellant-insurance company that the road was four lane and though the
truck was standing in the middle of the road, still there was lot of space
available for the deceased Devidas, this cannot be accepted as usually
5 (2021) 1 Supreme Court Cases 171
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the driver of the two wheeler drives his vehicle from extreme left side of
the road and not from right side of the road which is meant for heavy
vehicle or four wheel vehicles. Thus, the said argument cannot be
accepted and the same is rejected.
16. As regards the last argument of the learned counsel for the
insurance company that, there is no evidence to show that whether the
truck was moving or it was parked. If it is a case of the Insurance
Company that the truck was not parked, but it was moving; the burden is
on the Insurance Company to prove its case, which admittedly the
Insurance Company failed to establish. In that view of the matter, it
cannot be said that the truck was not parked, but it was moving.
17. So far as the Judgments cited by the learned counsel for the
appellant - Insurance company are concerned, there is no dispute over
the law laid down in these Judgments on the point of contributory
negligence. The issue of contributory negligence is to be decided taking
into consideration the facts and circumstances of each case. In the
present matter, having observed as above as regards negligence, the
Judgments cited by learned counsel for insurance company are not
helpful.
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18. In view of the findings recorded above, I do not find any
merit in the case, accordingly, the First Appeal is dismissed. No order as
to cost.
19. The claimants are permitted to withdraw the amount
deposited by the Insurance Company, in this Court.
( ANIL S. KILOR )
JUDGE
rrd
