Bajaj Allianz General Insurance ... vs Baliram Govindrao Pimplekar And ...
2021 Latest Caselaw 11749 Bom

                                                       First Appeal No.1798/2019
                                        :: 1 ::



           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


                   FIRST APPEAL NO.1798 OF 2019 WITH
                   CIVIL APPLICATION NO.6954 OF 2019


 Bajaj Allianz General Insurance
 Company Limited                                       ... APPELLANT
       VERSUS
 Baliram s/o Govind Pimplekar & ors.                   ... RESPONDENTS
                             .......
 Shri S.G. Chapalgaonkar, Advocate for appellant
 Shri S.S. Manale, Advocate for respondents No.1 to 4
                              .......

                                WITH
                CIVIL APPLICATION NO.11133 OF 2019 IN
                    FIRST APPEAL NO.1798 OF 2019

 Baliram s/o Govind Pimpalekar, Died L.Rs.
 Smt. Kantabai w/o Baliram Pimpalekar
 and others                              ... APPLICANTS
       VERSUS
 Bajaj Allianz General Insurance
 Company Limited & ors.                  ... RESPONDENTS

                             .......
 Shri S.S. Manale, Advocate for applicants
 Shri S.G. Chapalgaonkar, Advocate for respondent No.1.
                              .......

                                  CORAM :         R. G. AVACHAT, J.
                                  DATE :          25th AUGUST, 2021
 O R D E R:

This appeal is directed against the judgment and

award dated 3/1/2019, passed by Motor Accident Claims

Tribunal, Aurangabad in Motor Accident Claim Petition

First Appeal No.1798/2019 :: 2 ::

No.10/2013, granting compensation of Rs.27,40,557/- with

interest @ 7% p.a., on account of death in a vehicular

accident. This Appeal has been preferred by the Insurance

Company of the alleged offending motorbike.

FACTS :-

2. Deceased Vijayanand died on 15/1/2012 in an

accident involving two motorbikes. His parents and two

sisters, therefore, preferred the claim petition. The Tribunal

awarded the same granting compensation as stated above.

3. Heard learned counsel for the parties. Perused

the impugned award and the evidence relied on.

Learned counsel for the appellant Insurance

Company would submit that, the accident took place on

15/1/2012. The F.I.R. has, however, been lodged 43 days

thereafter i.e. on1/3/2012. It was a specific defence of the

appellant Insurance Company that the vehicle has been

falsely involved in the accident. The deceased received

injuries on account of his own negligence while proceeding on

his motorcycle. It does not reflect that any other vehicle was

involved in the accident. The appellant Insurance Company

First Appeal No.1798/2019 :: 3 ::

has produced on record the documents Exhibits 115 to 119.

Those have not been relied upon by the Tribunal. The

investigating officer could not be examined as he was

reported dead. The claimants did not examine eye witness.

On the question of quantum, the learned counsel would

submit that, P.W.3 Peter has admitted to have had not been

authorised to give evidence on behalf of the Company. The

order of recruitment of the deceased with Aegis Pvt. Ltd. has

not been duly proved. There is no record to show the

deceased had ever worked with the said Company since the

appointment order was issued just four days before the

accident. According to learned counsel, a false and fabricated

evidence was brought into service. He, therefore, urged for

allowing the appeal.

The learned counsel for the claimants, on the

other hand, supports the impugned award.

4. The deceased Vijayanand met with a vehicular

accident on 15/1/2012. true, the F.I.R. has been lodged 43

days thereafter, on 1/3/2012. The evidence on record,

however, indicates that the delay has rightly been explained in

the F.I.R. The averments therein have been reinforced by the

First Appeal No.1798/2019 :: 4 ::

evidence on record.

5. The F.I.R. has been lodged by one Vijay Kothale, a

friend of the deceased. He was riding pillion on ill-fated

motorbike at the relevant time. He is none other than a

victim-cum-eye witness of the accident. In the F.I.R., it has

been averred as under :-

"It was Sunday on 15/1/2012. The informant Vijay was at his flat taken on rent. By 2.30 p.m., he received a phone call of his friend Vijayanand, deceased. As planned, the deceased came to his flat by 8.30 p.m. Both had decided to go out for dinner. The informant found the deceased to have been inebriated. He, therefore, requested the deceased to let him ride the motorbike. The deceased did not listen. The informant, therefore, preferred to be pillion rider. Both of them started on the motorbike towards Vishrantwadi by 9.00 p.m. While they were passing by Mhasoba Mandir, on Nagar-Pune Road, a truck was seen coming from Airport side. One motorcyclist was following the said truck. The said motorcyclist overtook the truck from the wrong side and dashed against their motorbike. As a consequence, both Vijay and the deceased fell off. People gathered. The informant was unable to stand. Somebody from the crowd took him close to the deceased. The informant contacted his friend on cellphone and asked to come. After a while, an ambulance came. The informant, the deceased and the rider of the other motorbike were taken to Jahangir Hospital in the said ambulance. All the three were extended first aid and then discharged. The sister of the deceased

First Appeal No.1798/2019 :: 5 ::

had meanwhile arrived. They took the deceased to his room. The informant, on the next day, came to Aurangabad, his native place. He was admitted to M.G.M. Hospital at Aurangabad as he had suffered fracture of waist bone. On 20th January, he learnt Vijayanand to have passed away. As the informant was taken taking treatment in the hospital, he could not lodge the report of the accident immediately.

6. True, the sister of the deceased, within hours of

the accident, gave a statement to the police that the deceased

suffered injuries as his motorcycle slipped. The same case

has thus, been reiterated in inquest and in the scene of

offence panchanama as well (Exhibits 50 and 49 respectively).

Admittedly, the sister of the deceased had not witnessed the

accident. It thus appears that, she gave the statement based

on her imagination. Before the Tribunal, some documents

came to be produced from Jahangir Hospital. These

documents undoubtedly indicate that the trio i.e. the

deceased, informant and the rider of the offending motorbike

were rushed to Jahangir Hospital. All the three were

discharged after extending them first aid. It is unfortunate

that, the deceased took discharge against the medical advice,

only for the reason of paucity of funds to incur medical

expenditure in a private hospital like Jahangir Hospital. His

sister took him back to her room. On the following day, his

First Appeal No.1798/2019 :: 6 ::

parents came. The deceased was admitted to Government

Hospital whereat the treatment was free. He, however,

breathed his last within four days of his admission. It is

reiterated that, the informant had given the graphic/ minute

details of the accident in the F.I.R. The averments therein

have been reinforced by the medical papers submitted by the

Jahangir Hospital. Based on the said evidence, no other

conclusion can be drawn than the one drawn by the Tribunal

regarding the manner in which the accident took place and

involvement of two motorbikes therein.

QUANTUM :-

7. The learned counsel for the appellant Insurance

Company has rightly not argued much on the question of

quantum of compensation awarded by the Tribunal. I find

some mistake committed by the Tribunal in calculating the

amount of compensation, the rectification of which would lead

to enhancement thereof, but for want of appeal or cross-

objection, for enhancement thereof. There is ample evidence

to indicate that the deceased was first serving with Internet

Global Services Ltd. Just four days before the accident, he

was appointed as a Team Leader with "Aegis". In response to

the witness summons, P.W.3 Peter appeared before the

First Appeal No.1798/2019 :: 7 ::

Tribunal and tendered in evidence certain documents. It is

evident from those documents that the deceased had worked

with Aegis for three days next before he breathed his last. He

was appointed with the said Company at an annual pay of

Rs.2,20,000/-. For the three days of service he rendered with

the said Company, salary amounting to Rs.2313/- was

credited to his Bank Account. The Tribunal, considering the

said evidence, has worked out the amount of compensation

and granted the same.

8. I do not find any reason to interfere with the

impugned award. In the result, the appeal fails. The same is

dismissed. Consequently, Civil Applications are disposed of.

The amount in deposit with this Court be paid to

the applicants/ claimants with interest accrued thereon.

( R. G. AVACHAT ) JUDGE

fmp/-