M/S Shriram General Insurance ... vs Sunita Gabaji Bhor And Ors
2021 Latest Caselaw 14435 Bom

                                                First Appeal No.2349/2019
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           IN THE HIGH COURT OF JUDICATURE OF BOMBAY

                               BENCH AT AURANGABAD


                  FIRST APPEAL NO.2349 OF 2019 WITH
                  CIVIL APPLICATION NO.13715 OF 2018



 M/s Shriram General Insurance
 Company Limited, 100-E-8, EPIP,
 RIICO Industrial Area, Sitapur,
 Jaipur (Rajasthan State) - 302 022
 through its Branch Manager,
 Authorised Signatory, Aurangabad               ... APPELLANT


          VERSUS


 1.       Sunita Gabaji Bhor,
          Age 43 years, Occu. Household

 2.       Sagar Gabaji Bhor,
          Age 25 years, Occu. Education

 3.       Snehal Gabaji Bhor,
          Age 21 years, Occu. Education

          All R/o Rahuri Kd., Tal. Rahuri,
          Now Behind R.B.N.B. College,
          Shrirampur, Taluka Shrirampur,
          District Ahmednagar.

 4.       Rajendra Popat Sonawane,
          Age major, Occu. Business,
          R/o Shingve Naik, Taluka Nagar,
          District Ahmednagar                   ... RESPONDENTS

                              .......
 Shri S.G. Chapalgaonkar, Advocate for appellant
 Shri V.S. Bedre, Advocate for respondents No.1 to 3
                              .......




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                                                       First Appeal No.2349/2019
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                                   CORAM :       R. G. AVACHAT, J.

                                   DATED :       5th OCTOBER, 2021

 J U D G M E N T:

This appeal is filed by the Insurance Company,

challenging the judgment and award dated 20/10/2016,

passed by Motor Accident Claims Tribunal (Tribunal),

Shrirampur in Motor Accident Claim Petition (Petition),

No.15/2016. A sum of Rs.12,95,000/- with interest @ 8%

p.a. has been directed to be paid by the appellant Insurance

Company and the owner of the vehicle involved in the

accident, to the legal representatives (claimants) on account

of death of Gabaji Bhor. The challenge to the impugned

award is mainly on the ground of false involvement of the

motor vehicle - TATA Tempo bearing Registration No.MH-42/B-

8038.

2. It is the case of the claimants that, the deceased

Gabaji was serving as Canal Inspector with the Office of Mula

Irrigation Branch No.2. Shri Raosaheb Dushing was his

colleague. In the evening of 21/10/2015, both of them set

out on a motorbike bearing Registration No.MH-17/AT-5765

for patrolling duty as incidents of theft of water in the Canal

were on the rise. Raosaheb was riding the motorbike. The

First Appeal No.2349/2019 :: 3 ::

deceased was pillion rider. It was about 10.30 p.m., they

were passing along Chedgaon Brahmani Road. A heavy

vehicle came from opposite direction. It was being driven in a

rash and negligent manner. It had dazzling headlights. The

vehicle dashed against the motorbike. The duo fell off the

motorbike. Both of them suffered multiple injuries. Deceased

Gabaji was rushed to City Care Hospital, Ahmednagar. He

was shifted to Ruby Hall Clinic, Pune for better treatment.

He, however, breathed his last on 27/10/2015. The

claimants, legal representatives of the deceased, therefore,

preferred the petition for compensation. The Tribunal, on

appreciation of the evidence, granted compensation of

Rs.12,95,000/-.

3. Heard. Learned counsel for the appellant -

Insurance Company would submit that, it is a case of collusion

between the owner of the alleged vehicle owner, claimants

and police. Relative of the deceased gave report of the

accident to the concerned police station. It was informed

therein that the motorbike slipped. The deceased suffered

multiple injuries. Inquest panchanama was prepared. The

deceased was shifted to Ruby Hall Clinic, Pune for better

treatment. The same has been reflected in the summary of

First Appeal No.2349/2019 :: 4 ::

medical papers prepared at Rubi Hall Clinic, Pune. After 13

days of the accident, Raosaheb, rider of the motorbike gave

information, contradictory to the version in the police report

lodged by the relation of the deceased. He reported that, a

truck-like heavy vehicle dashed against his motorbike. It is

only 17 days thereafter he gave a supplementary statement

containing the vehicle number. No evidence was let in to

prove how could he notice or get the number of the alleged

offending vehicle. As such, it was a case of no evidence to

indicate involvement of the alleged offending vehicle. Learned

counsel took me through the reasons given by the Tribunal in

support of the impugned award. According to him, the

reasons are cryptic. No police papers could be blindly relied

upon. He, therefore, urged for setting aside the impugned

award.

4. Learned counsel for the claimants would, on the

other hand, submit that, it is a death claim. On due

investigation, the driver of the offending vehicle was

prosecuted. The vehicle owner admitted involvement of the

vehicle. Due to untimely death of Gabaji, the claimants have

suffered incalculable loss that cannot be compensated in

terms of money. The compensation is somewhat a solace. He

First Appeal No.2349/2019 :: 5 ::

would further submit that, the appellant Insurance Company

did not lead any evidence in disproof of the case propounded

by the claimants. On the basis of preponderance of

probabilities, the Tribunal has rightly allowed the petition. He,

therefore, urged for dismissal of the appeal.

5. The record indicates that, vide order dated

8/1/2020, the appeal was directed to be heard and was listed

for hearing on 5/3/2020.

6. following point arises for consideration :

"Has it been proved that deceased Gabaji Bhor died in the accident involving motorbike bearing No.MH-17/AT-5765 and the TATA tempo bearing Registration No.MH-42/B- 8038 on21/10/2015 ?"

7. In case of Mangla Ram Vs. Oriental insurance

Company Limited & ors. [ (2018) 5 SCC 656 ], it has been

observed,

"While dealing with a claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, a Tribunal stricto sensu is not bound by

First Appeal No.2349/2019 :: 6 ::

the pleadings of the parties; its function being to determine the amount of fair compensation in the event an accident has taken place by reason of negligence of that driver of a motor vehicle. The Tribunal has to take a holistic view of the matter. A strict proof of an accident caused by a particular vehicle in a particular manner may not be possible. The claimants are merely required to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt cannot be applied. The approach of the Tribunal should be holistic analysis of the entire pleadings and evidence by applying the principles of preponderance of probability."

8. The accident between the aforesaid two vehicles is

said to have taken place on 21/10/2015. A copy of the

charge sheet filed against the driver of the TATA Tempo was

also placed on record. Admittedly, Sunita did not witness the

accident. Whatever she has deposed to as regards the factum

of accident is hear-say and, therefore, inadmissible in

evidence.

9. The accident is dated 21/10/2015. A report

thereof was lodged with the police station 13 days thereafter

First Appeal No.2349/2019 :: 7 ::

i.e. 3/11/2015. The informant is none other than the

motorbike rider, in whose company the deceased was when

the accident took place. A copy of the report is at Exh.21. It

has been stated therein as under :

"It was 10.30 p.m. The informant was riding the motorbike. They were passing along Chedgaon Brahmani Road. A heavy vehicle like truck came from opposite side. It was being driven in high speed. Due to its dazzling light and the speed, the driver side of the said vehicle dashed against his motorbike. The vehicle did not stop. The driver fled with the vehicle. The informant could not read the vehicle number nor could he understand the type of the offending vehicle."

10. From the aforesaid averments in the report

Exh.21, the involvement of the offending vehicle could not be

made out. The informant Raosaheb gave a supplementary

statement to the police on 30/12/2015 i.e. about 70 days

after the accident. It is in his statement that, he made

enquiry about involvement of the vehicle in the accident to

learn that it was a TATA make Tempo bearing Registration

No.MH-42/B-8038. The statement is very much silent to

First Appeal No.2349/2019 :: 8 ::

suggest with whom the informant made enquiry and/or from

whom he got the information about involvement of the TATA

tempo. It is informed that, on the basis of the said

statement, the charge sheet was filed against the tempo

driver. It is also informed that, in the inquest panchanama

and the history recorded in medical papers prepared at the

Ruby Hall Clinic, it has been mentioned that the motorbike

slipped/ skidded. There is no denial of these facts. As such,

there is no cogent, reliable and convincing evidence to

observe that it was an accident between TATA Tempo bearing

Registration No.MH-42/B-8038 and the motorbike bearing

Registration No.MH-17/AT-5765. The Tribunal simply relied on

the evidence of Sunita and factum of filing of the charge sheet

against the tempo driver. It is true that, the owner of the

tempo has admitted involvement of the said vehicle in the

accident. The same is nothing but collusion between him and

the claimants. In this factual backdrop, the Tribunal ought

not to have saddled the appellant Insurance Company with a

liability to pay compensation.

11. The deceased was a State Government employee.

On his death in harness, his legal representatives must have

been in receipt of the service benefits including appointment

First Appeal No.2349/2019 :: 9 ::

on compassionate ground to one of the eligible legal

representatives. True, these facts have no bearing on the

decision of the claim petition. Be that as it may. Since there

was no evidence at all indicating involvement of the TATA

tempo bearing Registration No.MH-42/B-8038 in the accident,

the award impugned in this appeal needs to be set aside.

12. In the result, the appeal succeeds. The appeal is

allowed. The award dated 20/10/2016, passed by Member,

Motor Accident Claims Tribunal, Shrirampur in Motor Accident

Claim Petition No.15/2016 is set aside. Civil Application

No.13715/2018 is disposed of. The Motor Accident Claim

Petition No.15/2016 is dismissed. The amount deposited by

the appellant Insurance Company be paid back to it along

with interest accrued thereon after three months.

( R. G. AVACHAT ) JUDGE

fmp/-