New India Insurance Co. Ltd., Thr ... vs Vaishali Shriram Rathod And Ors
2022 Latest Caselaw 1307 Bom

                                                                    FA-1748-2019.odt



             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                        BENCH AT AURANGABAD
                          FIRST APPEAL NO. 1748 OF 2019

 New India Insurance Company Ltd.,
 Through its Divisional Manager/Authorized Signatory,
 Mahesh Auto Compound,
 Adalat Road, Aurangabad,
 Dist. Aurangabad                              ... Appellant
                                     (Original Respondent No.1)
        Versus

 1.       Vaishali Wd/o Shriram Rathod
          Age: 25 years, Occu. Household
 2.       Divya D/o Shriram Rathod
          Age: 5 years, Occu: Education
          (Being Minor U/g of her mother
          i.e. respondent No.1)
 3.       Gayabai W/o Maharu Rathod
          Age: 58 years, Occu. Nil,
 4.       Maharu s/o Zabba Rathod
          Age: 60 years, Occu. Nil
          All R/o Mohdi Tanda, Tq. Kannad,
          District Aurangabad
 5.     Avinash s/o Baban Pawar
        Age: Major, Occu. Business,
        R/o. Borgaon, Tq. Khultabad,
        Dist. Aurangabad                         ... Respondents
                               (Respdt.Nos. 1 to 4 - Org.Claimants
                                   Respdt No.5 - Org. Respdt.No.1)
                                   ....
 Mr. S. G. Chapalgaonkar, Advocate for appellant
 Mr. P. C. Mayure, Advocate for respondent Nos. 1 to 4
 Mr. S. M. Kshirsagar, Advocate for respondent No.5
                                   ....



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                                     CORAM : R. G. AVACHAT, J.

RESERVED ON : 18th NOVEMBER, 2021 PRONOUNCED ON : 08th FEBRUARY, 2022

J U D G M E N T :-

. This is Insurance Company's appeal, taking exception to

the judgment and award dated 01.12.2018, passed by the Member,

Motor Accident Claims Tribunal, Aurangabad, in Motor Accident

Claim Petition No.44/2016, granting compensation of

Rs.14,20,000/- on account of death in vehicular accident.

2. Facts giving rise to the present appeal are as under:

Motorcycle No. MH-20-DQ-9472, met with the accident

on 06.07.2015. It so happened that the deceased Shriram and his

friend Rameshwar had been to Khultabad for labour work. They

were returning from Khultabad on the motorcycle. The deceased was

riding the same. At about 8.30 p.m., they were passing by

Akhatwadya Phata, a motorcycle No. MH-20-DQ-6011 was

approaching from behind. It was being driven in rash and negligent

manner. The said motorcycle dashed the motorcycle ridden by the

deceased from behind and fled. As a result of the accident, both, the

deceased and his friend suffered multiple injuries. They were

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admitted to a hospital. Shriram, however, unfortunately, succumbed

to the injuries. His widow, minor daughter and parents, therefore

preferred petition for compensation contending that the deceased

was serving as Supervisor with a construction company at a monthly

pay of Rs.20,000/-.

3. The owner of the offending motorcycle was proceeded

exparte before the Tribunal. The appellant - Insurance Company

resisted the claim petition on the ground of there being a collusion

between the owner of the offending vehicle and the respondents -

claimants. It was stated in the report of the accident lodged first in

point of time that one unknown motorcycle gave dash to the

motorcycle being plied by the deceased. There is delay in lodging

First Information Report (FIR).

4. The Tribunal, after appreciating the evidence, allowed

the claim granting compensation as stated above.

5. Learned Advocate for the appellant - Insurance

Company would submit that the scene of the accident panchanama

undoubtedly indicates that the motorcycle skidded. It has been

stated in the report of the accident that an unknown vehicle dashed.

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No particulars as to date and time have been given. The FIR came to

be registered late. The claimants joined hands with the Investigating

Officer and the owner of the offending vehicle, as well. It is also

submitted that rider of the offending vehicle did not hold valid and

effective licence. The same is evident from the fact that he was

charged with an offence punishable under Section 3 read with 181

of the Motor Vehicles Act. The learned Advocate urged for allowing

the appeal.

6. Learned Advocate for the respondents - claimants

would, on the other hand, submit that the Tribunal has rightly

appreciated the evidence and arrived at a finding of fact. The owner

of the offending motorcycle did not file his written statement. His

motorcycle was seized in connection with the crime registered

against the motorcycle rider. He did not raise any objection

regarding prosecution of the rider of his motorcycle. The learned

Advocate would further submit that the appellant - Insurance

Company has relied on the police papers of the investigation. The

crime was registered against the rider of the offending motorcycle.

The appellant - Insurance Company, therefore, cannot be allowed to

partially resile from the police papers which do indicate involvement

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of the offending bike in the accident in question. The learned

Advocate has relied on the following authorities.

(i) Oriental Insurance Co. Ltd. Vs. Premlata Shukla & Ors -

(2007)13 SCC 476;

(ii) Saroj and others Vs. Het Lal and others - (2011) 1 SCC 388;

(iii) Ravi Vs. Badrinarayan and others - 2011(4) Mh.L.J. 514.

7. Learned Advocate for the owner of the offending

motorcycle, supports the impugned judgment and order.

8. Considered the submissions advanced. Perused the

impugned judgment and award. Also perused the evidence relied on.

9. The Tribunal gave following finding on the question of

involvement of the offending vehicle.

"10] Heard Advocate for claimants as well as advocate of respondent no.1. The claimants have examined claim no.1 Vaishali Shriram Rathod, wife of deceased Shriram as PW- 1 at Exh.31. Coies of FIR Exh-25, Spot Panchanama Exh- 26, Inquest Panchanama Exh-27, Postmortem Report is at Exh-28, Insurance Cover Note of offending vehicle at Exh- 29, copy of application u/s. 457 of Cr.P.C. by respondent no.1 for release of offending motorcycle No.MH-20-DQ- 6011 Exh-34, Seizure Panchanama of offending vehicle Exh-35, Suprudnama Exh-36, Statement of Rameshwar Bhillu Rathod to Police Station Khultabad Exh-37, Supplementary Statement of Rameshwar Exh-38, Report filed by Head Constable G.H. Kathar is at Exh-39 and Muddemal Receipt of seizure of offending vehicle Exh-40.

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11] I have gone through entire oral as well as documentary evidence on record. Death of Shriram Maharu Rathod occurred on 11.7.2015 in motor accident (Inquest Panchanama Exh.27 and Postmortem Report Exh-

28) is not in dispute. Copies of Insurance Cover Note of offending vehicle at Exh-29, application u/s. 457 of Cr.P.C. by respondent no.1 for release of offending motorcycle Exh-34, Seizure Panchanama of offending vehicle Exh-35, Supurdnama Exh-36 show, said motorcycle No.MH-20-DQ- 6011 is standing in the name of respondent no.2 and as per Insurance Cover Note Exh-29, it was insured from 11.5.2015 to 15.5.2016 with respondent no.1. Alleged accident took-placed on 11.7.2015. It means, on the day of alleged accident said motorcycle was insured with respondent no.1 Insurance Company. Insurance Policy Cover Note of Offending Vehicle i.e. motorcycle No.MH- 20-DQ-6011 filed on record at Exh-29 shows name of respondent no.2 Avinash Baban Pawar as Insured.

12] Therefore, point in dispute remains only because of whose negligence alleged accident took-place."

10. The accident is the question of fact. Rash or negligence

on the part of rider of offending vehicle is another fact. The same is

to be proved on adducing evidence in that regard. An issue of fact

has to be decided on the basis of evidence obtainable in the very

case. True, the same is to be proved on preponderance of

probabilities. Police papers of the accident may be looked into. In the

case in hand, the accident took place on 06.07.2015. It was said to

be between two motorbikes. The offending motorbike is said to have

fled soon after the impact. The report of the accident was lodged

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immediately. It has been stated therein (Exh.25) that one unknown

motorbike came from behind. It dashed the motorbike ridden by the

deceased and then fled. The owner of the motorbike did not file

written statement. The facts of Saroj and others case (supra),

indicate that owner of the offending vehicle therein had filed the

written statement and admitted involvement of the vehicle in

accident. True, on investigation of the crime, the charge-sheet has

been laid against rider of the alleged offending motorbike. It is also

true that some of the police papers have been placed on record by

the appellant - Insurance Company itself. Those are in the nature of

application moved by the owner of the offending motorbike for

return thereof to him. The pillion rider - Rameshwar gave

supplementary statement (Exh.38) after over 40 days, wherein he

stated to have learnt from his relations and others that the offending

motorbike was bearing registration No. MH-20-DQ-6011. The

Investigating Officer was not examined. Even there is no police

statement of person claiming to have had seen the accident and

therefore, named the offending motorbike.

11. This Court is very much conscious of the fact that

Section 166 of the Motor Vehicles Act is a beneficial provision. The

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Court should have a liberal approach. The procedure prescribed for

inquiring the claim petition is summary in nature. The Apex Court,

in Mangla Ram Vs. Oriental Insurance Co. Ltd. and others, [2018

AIR (Supreme Court) 1900 ], held :-

"The evidence of these witnesses to the extent they have consistently stated that when the appellant was riding on his motorcycle bearing No.RJ-19-6636 at the relevant time, going to Basni from Panwara Phanta and when he reached near Siviya Nada, a green jeep coming at a high speed from Salawas side, hit the motorcycle from back side, as a result of which the appellant fell down and suffered severe injuries including to his right leg which was eventually amputated from above the knee level, has not been doubted. Pertinently, besides mentioning the description of the offending vehicle as a "jeep" they have also spoken about its colour (green) and that it was displaying the Congress Party flags and banners on the side of the jeep. In other words, their version limited to having noted the jeep number, has not been accepted. Besides, the Tribunal relied upon the evidence of respondent No.2 Chail Singh (DW-1) and Bhanwar Singh (DW-

2) who had stated that the jeep was deployed in the election campaign of Sarpanch of Somdar Village on the Salawas Road and thus denied the involvement of the vehicle in the accident in question."

12. Facts would indicate that, in the said case, there were

eye witnesses to the accident. They had given description of the

offending vehicle. On the basis of the same, the claim petition was

allowed. It is reiterated that, each case has to be decided on its facts

and circumstances.

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13. Close scrutiny of the documentary evidence on record

would suggest that there is no slightest of material to indicate the

involvement of the offending vehicle in question. It is not known as

to on what basis and material the Investigating Officer has filed the

charge-sheet against the rider of the alleged offending motorbike. In

view of this Court, the Tribunal ought not to have granted the claim

merely relying on the factum of filing of the charge-sheet. It is

reiterated that there is no slightest of evidence to suggest the

involvement of the offending motorbike, the fact that the owner

thereof had not filed written statement would be of no avail for the

respondents - claimants, since he is not the person who has to pay

the amount of compensation as his vehicle stood insured with the

appellant - Insurance Company. In the circumstances, the Tribunal

ought to have allowed the petition merely on the ground of factum

of filing of the charge-sheet. This Court is not at one with the finding

recorded by the Tribunal in that regard. Since there being no

evidence to infer the involvement of the alleged offending vehicle in

the accident in question, the claim petition is liable to be dismissed.

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14. The appeal, therefore, succeeds. The same is allowed .

15. The award dated 01.12.2018, passed by Member, Motor

Accident Claims Tribunal, Aurangabad in Motor Accident Claim

Petition No. 44 of 2016 is hereby set aside. Motor Accident Claim

Petition No.44 of 2016 is dismissed.

16. The amount in deposit be paid back to the appellant

Insurance Company along with interest accrued thereon after a

period of three months from the date of this order.

17. Pending civil application Nos. 6739 of 2019, 11690 of

2019 and 10406 of 2021, stand disposed of.

[ R. G. AVACHAT, J. ]

SMS

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