Bombay High Court
Icici Lombard General Insurance ... vs Smt.Maya Govind Patil And Ors on 5 December, 2023
Author: Abhay Ahuja
Bench: Abhay Ahuja
2023:BHC-AS:36266
First Appeal No. 399 of 2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.399 of 2023
ICICI Lombard General Insurance Co. Ltd.,
Through its authorized representative
Rupesh Chavan,
2nd Floor, Adventure tower, Opp. Oberoi hotel,
Sevadi Road, Ahmednagar-400 001.
Having its office at 2nd Floor, Office No. 203,
Meher House,No. 15, Cawasji Patel Street,
Opposite Akbarallys Furniture, Fort,
Mumbai-400001. ... Appellant
Vs.
1. Smt. Maya Govind Patel,
Age-48 Years, Occ- Household
2. Mr. Atul Govind Patil
Age-29 Years, Occ- Private Service,
3. Chandresh Govind Patil,
Age-25 Years, Occ- Private Service
All R/o Flat No. 11, Dream Heritage-B,
Matoshree Nagar, Upnagar,Nashik Road,
Nashik-422 101.
4. M/s Shree Ganesh Tours and Travels
through Prop. Ashok Laxman Sonawane
Age: Adult, Occ: Vehicle Owner,
R/o 19, Shelargaon Shelarphata,
Bhiwandi, Tal.: Bhiwandi,
Dist. Nashik-421 202 ...Respondents
Mr. Rajesh Kanojia with Ms. Deepika Prabhala i/b RES Juris for Appellant.
Ms. Amita Chaware, Advocate for the Respondents.
CORAM : ABHAY AHUJA, J.
RESERVED ON : 19th AUGUST, 2023
PRONOUNCED ON : 05th DECEMBER, 2023
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First Appeal No. 399 of 2023.doc
JUDGMENT :
1. This Appeal has been filed under section 173 of the Motor Vehicles
Act, 1988 (the "M.V. Act") challenging the judgment and award dated 30 th
April, 2019 passed by the Motor Accident Claims Tribunal, Nashik (the
"Tribunal") in Motor Accident Claim Petition No.1077 of 2013 partly
allowing the Claim Petition of the Respondents No. 1 to 3 and awarding
compensation of an amount of Rs.31,29,856/- including amount of 'no-
fault' liability against the Appellant and Respondent No.4 who were held
to be jointly and severally liable to pay the compensation amount with
interest at the rate of 7% from the date of the petition till realization of
the entire amount. The Tribunal further held that out of the total
compensation, 80% of the amount to be paid to Respondent No.1 being
the wife of the deceased, and 10% each to be paid to Respondents No. 2
and 3 being sons of the deceased with proportionate interest. Out of the
share of Respondent No.1, the amount of 50% was directed to be invested
with any nationalized bank of her choice for a period of five years with
liberty to withdraw the interest quarterly and balance to be paid to the
wife by account payee cheque.
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2. By an order dated 20th March, 2023, this Court has condoned the
delay of 150 days in filing the appeal. By a further order dated 7 th August,
2023 this Court held that the interests of justice would be served if the
appeal is finally heard at the stage of admission and accordingly the
matter is listed the matter for final disposal.
3. The brief facts in this matter are as follows. That on 15 th November,
2012, Govind Prabhu Patil, being the husband of the Respondent No.1 and
the father of Respondents No. 2 and 3, was proceeding by his Scooty Pep
bearing Registration No. MH-15-CP-5373 from Sinnar to Pandhurli road,
at that time, the driver of the luxury bus bearing Registration No. MH-04-
FK-857 dashed the Scooty Pep in which Govind Prabhu Patil sustained
serious injuries and succumbed to his injuries.
4. An offence was registered against the driver of the luxury bus
bearing Registration No. MH-04-FK-857 (the "offending vehicle") by
Sinnar Police Station, Nashik. The said vehicle was owned by Respondent
No.4 and driven by his driver and insured with the Appellant for a period
of one year from 17th July, 2012 to 16th July, 2013. It is not therefore in
dispute that the offending vehicle was insured by the Appellant on the
date of the accident.
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5. The Respondents No. 1 to 3, being the legal heirs of the deceased
Govind Prabhu Patil who was aged about 56 years at the time of the
accident and was earning Rs.50,745/- per month from his service as
Commercial Inspector GR 4, Central Railway, Mumbai C.S.T. Mumbai,
preferred their claim application before the Tribunal for a compensation of
Rs. 40 lacs.
6. Respondent No.4 failed to appear before the Tribunal although
served and the claim proceeded ex-parte against the Respondent No.4 vide
order dated 17th July, 2015.
7. The Appellant filed its Written Statement wherein it inter alia
denied the claim of the Respondents No. 1 to 3. The Appellant submitted
that the accident took place due to the rash and negligent driving of the
Scooty Pep bearing Registration No. MH-15-CP-5373 and that there was
no negligence on the part of the driver of the offending vehicle viz. luxury
bus bearing Registration No. MH-04-FK-857 and therefore the Appellant
was not liable to pay compensation. The Appellant further raised statutory
defences stating that there was breach of the terms and conditions of the
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insurance policy such as want of confirmation of insurance policy,
unauthorized passengers, the driver not holding a valid and effective
motor driving license at the time of the accident to deny its liability to pay
compensation. The Appellant therefore prayed for dismissal of the Claim
Petition with costs. The Appellant did not examine any witness in support
of its defence.
8. The Tribunal examined the report and printed FIR, spot panchnama,
ferista, chargesheet, arrest panchnama, postmortem report and Inquest
panchnama on the issue of whether when Govind Prabhu Patil was
proceeding on his Scooty Pep bearing Registration No. MH-15-CP-5373
towards Pandhurli at that time at Sinnar Ghoti Highway, the driver of
offending vehicle luxury bus bearing Registration No. MH04-FK-857 drove
it in a rash and negligent manner and dashed the motorcycle of the
deceased, Govind Prabhu Patil in which he succumbed to his injuries.
9. The Tribunal observed that from the Report and FIR it was clear
that the crime was registered on November 16, 2012 against luxury bus
for offence punishable under Sections 279, 304-A, 338, 427 of the Indian
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Penal Code and Sections 184, 134(a)(b)/177 of the Motor Vehicles Act
with Sinnar Police Station, Nashik in respect whereof a chargesheet was
filed on 24th March, 2013 and that deceased Govind Prabhu Patil sustained
injuries and succumbed to it. The Tribunal held that the postmortem
report and the Inquest panchnama were sufficient to prove that the
deceased Govind Prabhu Patil died in a road accident caused by rash and
negligent driving of the offending vehicle. The Tribunal held that although
the Appellant in its defence stated that the luxury bus was falsely
implicated, however, neither the Respondent No.4 nor the driver of the
luxury bus was examined to prove the negligence of the deceased or the
non-involvement of the offending vehicle. The Tribunal recorded that
except the suggestion of non-involvement of the luxury bus, nothing was
brought on record to prove the defence of the Appellant.
10. The Tribunal further referred to the examination by Respondent
No.1 of CW-3 Tulshiram Shriram Chowdhary, being Police Havildar
attached with Sinnar Police Station who deposed that on November 15,
2012, he received telephonic information that around 8:30 or 9:00 p.m.,
at Pandhurli Square the Luxury Bus bearing No. MH-04-FK-857 dashed to
Scooty No. MH-15-CP-5373 and the driver of the luxury bus fled from
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there. Subsequently the bus was intercepted and the driver was arrested
and charegsheeted. The Tribunal held that from this evidence it clearly
appears that the accident was caused due to the negligence of the driver
of the offending vehicle luxury bus. The Tribunal reiterated that neither
Respondent No.4 nor his driver entered into the witness box to prove the
negligence of the deceased and thus there was no evidence to disbelieve
the version of Respondent No.1.
11. The Tribunal recorded that the Appellant submitted that the
offending vehicle was not involved in the accident and that the number of
the vehicle was implicated by delaying the FIR and also in the FIR the
vehicle number is not mentioned and that the Investigation Officer did not
appear in the Court despite Show Cause Notice. The Tribunal after
examining the matter held that the Appellant did not lead any evidence to
prove that the claim is based on fabricated document or evidence. The
Tribunal held that mere delay in lodging the FIR cannot be construed that
the claim is false particularly when the chargesheet is filed against the
driver of the offending vehicle after the investigation of the involvement of
the vehicle in the accident. The Tribunal therefore held that in the facts
and circumstances of the case and evidence brought on record, it was
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proved that the accident was caused due to rash and negligent driving of
offending luxury bus bearing Registration No. MH-04-FK-857 resulting in
the death of deceased Govind Prabhu Patil and the Appellant failed to
prove that the claim is false or frivolous.
12. The Tribunal held that the Appellant did not examine any witness or
place on record any document to prove breach of condition of insurance
policy. The Tribunal further held that Respondent No. 4 was the owner of
the offending luxury bus and the vehicle was insured with the Appellant at
the time of the accident and therefore both Respondent No.4 and
Appellant were jointly and severally liable to pay compensation to the
Respondents No. 1 to 3.
13. Accordingly, the Tribunal awarded compensation of an amount of
Rs.31,29,856/- including amount of 'no-fault' liability from the Appellant,
partly allowing the Claim Petition of the Respondents No. 1 to 3 and
holding the Appellant as well as Respondent No.4 to be jointly and
severally liable to pay the compensation amount with interest at the rate
of 7% from the date of the petition till realization of the entire amount.
The Claimants accepted the compensation awarded by the Tribunal and
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did not challenge the award.
14. However, being aggrieved and dissatisfied by the Impugned
Judgment and Award partly allowing the Claim Petition of the
Respondents No. 1 to 3 and awarding a sum of Rs.31,29,856/- including
amount of 'no-fault' liability from the Appellant and Respondent No.4 who
were held to be jointly and severally liable to pay the compensation
amount with interest at the rate of 7% from the date of the petition till
realization of the entire amount, the Appellant - Insurance Company has
preferred this Appeal.
15. Mr. Rajesh Kanojia, the learned counsel for the Appellant submits
that while awarding compensation the Tribunal failed to observe that
there was a delay in lodging the FIR and no vehicle number was
mentioned in the FIR and that the Respondents No. 1 to 3 have utterly
failed to substantiate the delay in filing the FIR. Mr. Kanojia submitted
that the Investigating Officer was not examined as to why and how he had
filed a chargesheet against the driver of the offending vehicle and in the
absence of such a crucial witness, the statement of CW-3, Mr. Chowdhary
cannot be taken as relevant as he was not the Investigating Officer in the
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said case. Mr. Kanojia therefore submitted that the possibility of
fraudulently involving the vehicle in the accident cannot be ruled out as
there is no eye witness nor any documentary evidence to prove the
involvement of the vehicle.
16. Mr. Kanojia, relied upon the decision of this Court in the case of
Bajaj Allianz General Insurance Co. Ltd. v. Meera 1 in support of his
arguments. In this case the Court held that the involvement of the vehicle
itself was under cloud and question mark, as claimants failed to establish
involvement of vehicle insured with appellant. The appellant Insurance
Company could not have been branded to face responsibility to answer the
claim. He also relied on the statement given by the driver of the offending
vehicle before the police that he was not involved in the accident. Learned
Counsel, therefore, submitted that not even a prima facie case has not
been made out by the Respondents No. 1 to 3.
17. Ms. Amita Chaware, learned counsel for Respondents No. 1 to 3
opposed the submissions made on behalf of the Appellant. Ms. Chaware
submitted that though served with notice, Respondent No.4 failed to
appear throughout the proceedings nor was evidence filed on behalf of the
1 First Appeal No. 1921 of 2013 decided on 17.02.2014.
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Appellant and the Respondent No. 4 before the Tribunal. She further
submits that no documentary evidence was filed by the Appellant that the
luxury bus was falsely implicated nor was Respondent No.4 nor the driver
of the offending vehicle examined to prove any negligence of the deceased
or non-involvement of the offending vehicle. She submits that except the
suggestion of the non-involvement of the luxury bus, nothing is brought
on record to prove the defence of the Appellant.
18. Ms. Chaware submits that the Respondents No. 1 to 3 have
examined CW3 who is the police Havildar attached with the Sinnar Police
Station and who on the basis of the telephonic information conveyed the
same to Ghoti Police Station and the luxury bus and the driver were
apprehended. She submits that the chargesheet stands to the testimony of
CW3 and from this it is clearly proved that the accident was caused by the
negligence of the driver of the offending vehicle against whom the offence
was immediately registered. Ms. Chaware submitted that the Appellant or
the Respondent No.4 did not lead any evidence to prove that the claim is
based on fabricated document or evidence and then reliance of the
Appellant on the delay in lodging is just an excuse to avoid the liability.
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19. Ms. Chaware submits that the offending vehicle was validly insured
with the Appellant and hence the Appellant cannot deny this liability. She
points out that the Written Statement filed by the Appellant does not have
a single pleading suggesting the non-involvement of the offending vehicle.
She submitted that the findings of the Tribunal were very clear that
although the Appellant came with the defence that the luxury bus was not
involved, however, neither the Respondent No.4 nor the driver of the
luxury bus were examined to prove negligence of the deceased or non-
involvement of the offending vehicle. She submits that the reasoning and
the findings given by the Tribunal have been correctly appreciated and
applied to the case of the Respondents No. 1 to 3 and the only ground of
challenge raised by the Appellant is not sustainable in the eyes of the law.
20. I have heard Mr. Kanojia, learned counsel for the Appellant and Ms.
Chaware, learned counsel for Respondents No. 1 to 3 and with their able
assistance, I have perused the papers and proceedings in the matter and
considered the rival submissions.
21. In this Appeal, the Appellant's primary ground of challenge is with
respect to the involvement of the offending vehicle. That the offending
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luxury bus was not involved in the accident as (i) there was no vehicle
number mentioned in the FIR, (ii) there was delay in filing the FIR, (iii)
there was no eye witness or documentary evidence to prove the
involvement of the offending vehicle, (iv) there is an undated statement of
the driver that he did not cause the accident, (v) the statement of CW3
should be ignored as he was not the Investigating Officer in the matter
and finally (vi) the Investigating Officer in the matter was not examined
as he did not attend the Tribunal despite being issued notice. Learned
counsel for the Appellant has relied on the decision in the case of Bajaj
Allianz General Insurance Co. Ltd. v. Meera (supra) in support of his
contentions.
22. This Court has examined the decision of the Tribunal, the FIR, the
spot panchnama, the chargesheet, the post-mortem report, the Affidavit in
Examination-in-chief of Respondent No.1 and Cross Examination, the
Affidavit in Examination-in-chief of CW3 and CW2 and their Cross-
Examination as well as the compilation of documents filed on behalf of the
Appellant in this matter.
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23. It is clear from the decision of the Tribunal that the Respondent
No.4, the owner of the bus, failed to appear though served with notice and
therefore the matter proceeded against him ex-parte vide order dated July
17, 2015. The Appellant thereafter filed its Written Statement before the
Tribunal on July 29, 2015. In the Written Statement the Appellant
submitted that the accident was caused due to the rash and negligent
driving of the deceased. However, the Appellant denied that the luxury
bus was insured with it due to want of confirmation under Section 64 VB
of the Insurance Act. The Appellant also raised other statutory defences to
deny its liability including that there were unauthorized passengers, the
driver was not holding a valid and effective license, etc.
24. The Tribunal has correctly relied on the post mortem report and the
inquest panchnama and observed that these are sufficient to prove that
the deceased died in a road accident caused by the rash and negligent
driving of the offending vehicle. That neither the Respondent No.4 nor the
driver of the luxury bus were examined to prove the negligence of the
deceased or the non- involvement of the offending vehicle and except for
suggestion of non-involvement of the luxury bus, nothing was brought on
record to prove the defence of the Appellant. The Tribunal has also
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correctly held that the copy of the chargesheet stands to the testimony of
CW3, the police havildar attached with Sinnar Police Station. Therefore
the Tribunal held that it is proved that the accident was caused due to the
rash and negligent driving of the driver of the offending luxury bus
bearing Registration No. MH04-FK-857 which resulted in the death of the
deceased and that the Appellant had failed to prove that the claim is false
or frivolous.
25. In my view, since the Respondents No. 1 to 3 have examined CW3
who received the phone call regarding the accident caused by the
offending vehicle on the basis of which the luxury bus and driver were
apprehended and chargesheeted, it is for the Appellant to prove its claim
that the offending vehicle was fraudulently implicated. As is rightly
observed by the Tribunal, merely a submission by the Appellant that the
offending luxury bus was not involved in the accident is not enough as
nothing was brought on record to corroborate the same. Despite
opportunities to do so, the Appellant did not examine the driver of the
offending luxury bus nor Respondent No.4. Reliance of the Appellant on
an undated statement of the driver claiming that he was not involved in
the accident is not sufficient. The Appellant has not been able to prove
that the accident was not caused by the offending vehicle.
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26. It is settled law that when a party to a proceeding makes a
statement or claim it must be supported by cogent evidence. In this
particular case, the Appellant has not been able to prove that the accident
was not caused by the offending luxury bus.
27. I have also examined the decision in the case of Bajaj Allianz
General Insurance Co. Ltd. v. Meera (supra) , relied upon by the learned
Counsel for the Appellants. This was a case filed by the inusrance
company with whom the offending vehicle was insured. There was an
accident pursuant to which a motorcycle rider and his pillion were
knocked down and FIR was registered against an unknown vehicle. Initial
investigation was carried out by one P.S., but later a PI claimed that on the
basis of oral directions of the SP, the investigation was assigned to him and
the PI filed a report against an owner of the offending vehicle, a Maruti
Zen, based on discreet sources about the involvement of the vehicle. In the
facts of this case the Court held that the involvement of the vehicle was
under cloud and question mark and therefore held that the Claimants
failed to establish involvement of vehicle.
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28. However, the facts of the present case are distinguishable in as
much as the police havildar CW-3 received a call at the Police Station
about the accident on the basis of which the luxury bus and the driver
were apprehended and chargesheeted. The Appellant did not examine the
driver of the luxury bus nor the Respondent No.4 to prove its claim of
non-involvement of the offending vehicle insured with it. Merely making a
statement or claim of non-involvement is not enough. The same must be
supported with cogent evidence.
29. Except making submissions, the Appellant has not been able to
prove that the accident took place due to the rash and negligent driving of
the Scooty Pep nor has been able to prove any of the statutory defences
including breach of the terms and conditions of the insurance policy, claim
of unauthorized passengers, driver not holding valid and effective licence,
etc to deny its liability to pay compensation. There is also no challenge to
the quantum of compensation awarded to the Claimants.
30. It would be relevant before parting to refer to the decision of the
Hon'ble Supreme Court in the case of N.K.V. Bros (P) Ltd. v. M. Karumai
Ammal and others2 wherein it has been held that Accident Claim Tribunals
2 1980 A.C.J. 435
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must take special care to see that innocent victims do not suffer and
drivers and owners do not escape liability merely because of some doubt
here or some obscurity there. Save in plain cases, culpability must be
inferred from the circumstances where it is fairly reasonable. The Court
should not succumb to niceties, technicalities and mystic maybes.
31. In view of the above discussion, I do not find any error or illegality
or perversity in the findings and the decision of the Tribunal. There is no
merit in the appeal. The Appeal deserves to be dismissed and is hereby
dismissed. Interim order stands vacated. No order as to costs.
32. The Respondent is entitled to total compensation of Rs.
Rs.31,29,856/- from the Appellant and Respondent No.4 who are jointly
and severally liable to pay the compensation amount along with interest at
the rate of 7% and the Respondents No. 1 to 3 are permitted to withdraw
the claim amount less the amount already withdrawn, with proportionate
accrued interest at the above rate, and in the manner and proportion
mentioned by the Tribunal in its judgment and award dated 30 th April,
2019.
(ABHAY AHUJA, J.)
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