Shriram General Insurance ... vs Jayshree @ Jayabai Balaji Mirkute ...
2021 Latest Caselaw 14906 Bom

                                                First Appeal No.2369/2020
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           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


                       FIRST APPEAL NO.2369 OF 2020



 M/s Shriram General Insurance
 Company Ltd., 10003, E-8,
 RIICO Industrial Area, Sitapura,
 Jaipur - 302 022, Office : 327,
 3rd Floor, A Wing, Jay Ganesh Vision,
 Akurdi Square, Khandoba Mala,
 Old Pune Mumbai Highway, Akurdi,
 Pune, through Manager (Legal)                           ... APPELLANT

          VERSUS

 1.       Jayashree @ Jayabai Balaji Mirkute,
          Age 23 years, Occu. Household

 2.       Vaishnavi Balaji Mirkute,
          Age 5 years, minor

 3.       Shruti @ Sarashti Balaji Mirkute,
          Age 2 ½ years,

          Respondents No.2 and 3 being minor,
          through the guardian mother -
          Respondent No.1.

 4.       Keshav Vishwanath Mirkute,
          Age 50 years, Occu. Nil

 5.       Harubai @ Harnabai Keshav Mirkute,
          Age 45 years, Occu. Nil

          All R/o Kokalegaon, Taluka Naygaon,
          District Nanded.
          Now resident of - Savatanagar,
          Newasa Fata, Taluka Newasa,
          District Ahmednagar.




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                                                    First Appeal No.2369/2020
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 6.       Mukesh Prakash Hande,
          Age major, Occu. Business,
          R/o Mukindpur, Taluka Newasa,
          District Ahmednagar.

 7.       Ganesh Shriniwas Kattewar,
          Age major, Occu. Business,
          R/o Mukindpur, Taluka Newasa,
          District Ahmednagar.                     ... RESPONDENTS

                              .......
 Shri V.N. Upadhye, Advocate for appellant
 shri V.B. Jagtap, Advocate for respondents No.1 to 5
                              .......

                               CORAM :        R. G. AVACHAT, J.

                  Date of reserving judgment : 6th October, 2021
                  Date of pronouncing judgment : 12th October, 2021



 JUDGMENT:

This is Insurance Company's appeal, challenging

the judgment and award dated 20/7/2020, passed by

Member, Motor Accident Claims Tribunal (Tribunal), Newasa,

District Ahmednagar in Motor Accident Claim Petition

(Petition) No.34/2018. The appellant insurance Company and

the owners of the motorbike involved in the accident have

been directed to pay the claimants a sum of Rs.13,64,000/-

as compensation on account of death in vehicular accident.

2. Facts, in brief, leading to filing of the present

appeal are as follows :

First Appeal No.2369/2020 :: 3 ::

Deceased Balaji was serving as a Waiter in "Hotel

Archana", belonging to respondent No.6 herein (R/6). After

closure of the hotel late in the evening on 23/8/2017

(intervening night of 23rd and 24th August 2017), both the

deceased and R/6 were on their way home on motorbike,

No.MH-17/BR-7090. R/6 was riding the motorbike. The

deceased was riding pillion. The motorbike slipped all of a

sudden. Both the deceased and R/6 fell off the motorbike.

An unknown vehicle coming from behind ran over the

deceased. The deceased was rushed to a hospital at Newasa.

He, however, breathed his last.

3. Shri Avadhut, brother of the deceased was

informed of the incidence. He, therefore, rushed to the

hospital. Avadhut then lodged the report of the accident

(Exh.27) with Newasa Police Station. It was reported therein

that, it was Yamaha motorbike bearing No.MH-17/BP-9747.

Avadhut gave a supplementary statement next day, stating

therein that it was a motorbike No. MH-17/BR-7090 and not

No.MH-17/BP-9747. On due investigation, the R/6 came to

be proceeded against for being responsible to the accident

and the resultant death of Balaji. The legal representatives of

First Appeal No.2369/2020 :: 4 ::

the deceased - parents, widow and two minor children filed

the petition for compensation. The Tribunal, on appreciating

the evidence in the petition, allowed the petition, granting

compensation as stated above.

4. Heard. Learned counsel for the appellant

Insurance Company would submit that, the motorbike No.MH-

17/BR-7090 has been falsely implicated in the accident in

question. In the F.I.R., an altogether different vehicle was

named. Almost 78 days after registration of the F.I.R. the

informant and the relations of the deceased changed their

version to implicate the motorbike No.MH-17/BR-7090.

Learned counsel took me through the evidence in the case

and relied on some authorities to ultimately urge for setting

aside the impugned judgment and award.

5. Learned counsel for the respondents - claimants

would, on the other hand, submit that, the informant on the

very next day of registration of the F.I.R., gave a

supplementary statement, correcting the motorbike number.

He took me through the evidence of the investigating officer,

panch to the scene of accident panchanama to submit that

these witnesses claimed to have seen the motorbike No.MH-

First Appeal No.2369/2020 :: 5 ::

17/BR-7090 at the accident spot. The informant was not in a

mental frame. His real brother had passed away. Based on

the information he had received, he lodged the report of the

accident. After having realised the involvement of the

motorbike No. MH-17/BR-7090, he immediately gave a

supplementary statement. According to learned counsel, it is

a death claim. Due to untimely death of Balaji, the claimants

have suffered incalculable loss. The deceased was the sole

bread winner of the family. Due to his untimately death, it is

hard for them to make both the ends meet. Learned counsel

ultimately urged for dismissal of the appeal.

6. Following points arise for consideration :

(1) Has it been proved that deceased Balaji died in an accident involving motorbike bearing Registration No.MH-17/BR-7090 ?

(2) Are claimants entitled to compensation and if yes, what shall be the quantum ?

7. The R/6 Mukesh runs hotel, "Archana". Deceased

Balaji was serving with his hotel as a Waiter. The deceased

was on duty on 24/8/2017. His brother Avadhut had also

First Appeal No.2369/2020 :: 6 ::

been serving as a Waiter with the very hotel. It is the case of

the claimants that, after closure of the hotel, late in the

evening of 24/8/2017, R/6 and deceased were on their way

home on the motorbike. R/6 was riding the motorbike. The

deceased was riding pillion. The motorbike is said to have

slipped all of a sudden. Both of them fell off the motorbike.

An unknown vehicle approaching from behind ran over the

deceased. He was rushed to the hospital at Newasa, but in

vain. Avadhut, brother of the deceased, therefore, lodged the

report of the accident with Newasa Police Station. The report

is at Exh.27. Admittedly, Avadhut had not witnessed the

accident. The report (Exh.27) is also silent to state who told

him of the accident. Avadhut stated in his report Exh.27 that

his employer - R/6 owned motorbike, No.MH-17/BP-9747.

Both the deceased and R/6 were on way home on the said

motorbike. The deceased hailed from Nanded. His dead body

was, therefore, taken to his native in Nanded district. In the

set of police papers on record, there is supplementary

statement said to have been given by Avadhut the next day

i.e. on 25th. In the said statement, he changed the motorbike

number from No.MH-17/BP-9747 to No.MH-17/BR-7090. On

close reading of the entire evidence in the case and the police

papers as well, it does appear that, there is neither direct nor

First Appeal No.2369/2020 :: 7 ::

circumstantial evidence to indicate involvement of the

motorbike No.MH-17/BR-7090. If R/6 really was in the

company of the deceased, it was for him to rush the deceased

to the hospital and report the matter to the concerned Police

Station at the earliest. He was nowhere on the scene. For

this Court, his presence could only be felt through his

consenting written statement. Strong reliance is placed on

the scene of accident panchanama and the evidence of the

investigating officer and the panch witness. The panchanama

Exh.28 was drawn soon after the report of the accident was

registered. Close reading of the panchanama would reveal

that, what the investigating officer noticed at the site was

blood stains and nothing more. Both the investigating officer

and the panch witness gave false evidence on oath. Both of

them claimed to have seen the motorbike No.MH-17/BR-7090

at the site when panchanama was being drawn. The contents

of the panchanama falsify their claim. Avadhut, in his

supplementary statement, claimed to have brought the

motorbike No.MH-17/BR-7090 to the police station. As such,

it is a case wherein there is neither direct nor circumstantial

evidence to indicate involvement of the motorbike. R/6 -

employer of the deceased appears to have been in collusion

with the claimants. The motorbike turned out to have

First Appeal No.2369/2020 :: 8 ::

belonged to R/7 herein. The Tribunal relied on the evidence

of the investigating officer Ravindra Pawar and panch witness

Rajendra Borude to observe that the offending motorbike was

lying at the site of the accident. The said observation is

grossly inconsistent with the evidence on record. A mere fact

that R/6 was proceeded against by filing the charge sheet

would in no way lead to infer involvement of the motorbike

No.MH-17/BR-7090 in the alleged accident.

8. This being a First Appeal, all the points involved

therein need to be addressed. On close reading of the

impugned award, the Tribunal has rightly worked out the

amount of compensation payable to the claimants. This Court

has no reason to interfere with the quantum of compensation

granted by the Tribunal. The claim petition would, however,

fail since the claimants miserably failed to make out a case of

involvement of the motorbike, No.MH-17/BR-7090.

9. In the result, the appeal succeeds. The impugned

award is set aside. The Claim Petition is dismissed.

( R. G. AVACHAT ) JUDGE

fmp/-