Bombay High Court
Maharudra Dhulayya Swami vs Santosh Sahadeo Chavan And Anr on 7 December, 2023
2023:BHC-AUG:25581
(1) fa1944.18
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 1944 OF 2018
Maharudra s/o. Dhulayya Swami, .. Appellant
Age. 42 years, Occ. Nil, [original
R/o. Kumbhar Galli, Ausa, claimant]
Tq. Ausa, Dist. Latur.
Versus
1. Santosh s/o. Sahadeo Chavan .. Respondents
Age. 42 years, Occ. Business,
Driver & Owner of Jeep (Taxi)
No. MH-24-F-3534
R/o. Jay Nagar, Tq. Ausa,
Dist. Latur.
2. General Manager,
The New India Assurance Co. Ltd.
Gayatri Krupa, Chandra Nagar,
Ukka Marg, Latur - 413 512.
Mr.B.R. Kedar, Advocate for the appellant.
Mr.A.B. Kadethankar, Advocate for respondent No.2.
CORAM : KISHORE C. SANT, J.
RESERVED ON : 20.10.2023
PRONOUNCED ON : 07.12.2023
J U D G M E N T :
-
01. The original claimant has filed this appeal
challenging dismissal of his claim petition by Ex-Officio
(2) fa1944.18
Member, Motor Accident Claims Tribunal, Latur, by
judgment and order dated 12.01.2018. The claimant had
filed MACP No. 246 of 2013. Respondent No.1/opponent
No.1 is driver and owner of vehicle No. MH-24-F-3534.
Respondent No.2 is original opponent - The New India
Assurance Co. Ltd., through its General Manager. For the
sake of convenience, the parties are referred to as per
their original status in the claim petition.
02. In short, the case of the claimant is that on
07.07.2013 while he was going on his motor cycle bearing
No.MH-24-P-962 from Latur to Ausa, he met with an
accident near Rest House, Ausa. The offending vehicle was
being driven by respondent No.1 in rash and negligent
manner. The offending vehicle came from backside and
gave dash to the motor-cycle of the claimant. Because of
the dash, the claimant fell down with his motor-cycle. In
the accident, he received multiple injuries to his head
and other parts of the body. The offence was also
registered against the vehicle owner.
(3) fa1944.18
03. The claimant's case further is that he is an
agriculturist and was also running a grocery shop at
Ausa. His income was Rs.3 lakhs per annum from the
agricultural land and from grocery shop he was earning
Rs.9000/- per month. Because of the accident, he became
permanently disabled. He cannot cultivate his land and
is also not in a position to run grocery shop. Though it
is case that he is entitled to receive Rs.94,91,000/-, he
has restricted his claimant Rs.10 lakhs, as he was not in
a position to pay the Court fees.
04. In the Trial, respondent No.1 did not appear.
Respondent No.2 appeared and resisted the petition by
filing written statement. All the allegations and the
averments as regards accident are denied. It is specific
case of respondent No.2 that the alleged offending
vehicle was not at all involved in the accident. The
respondent further stated in the written statement that
the claimant has not given exact time of the accident and
(4) fa1944.18
the particulars of place where accident took place. It is
alleged that the story of the accident is concocted and
imaginary. The complaint was lodged after about one
month's delay. In the hospital record, it is recorded
that the claimant himself fallen down from the motor-
cycle as he slipped on the road. This history was given
by brother of the claimant himself, who had taken the
claimant to hospital. The insurance cover of the taxi
jeep is also denied for want of confirmation. Against
respondent No.1 it is alleged that there was breach of
terms and conditions of the policy.
05. The learned Member recorded finding in
affirmative to the extent of permanent disability
suffered by the claimant. However, as regards involvement
of the vehicle, the finding is recorded in the negative.
On the issue of breach of policy the finding is in the
negative. The issue of involvement to receive
compensation is also answered in the negative. Since the
claim is denied, the claimant has approached this Court.
(5) fa1944.18
06. Learned Advocate Mr. B.R.Kedar vehemently argued
that when the Tribunal has accepted case of the claimant
about injury and permanent disability, still has held
that the claimant is not entitled to receive
compensation. About involvement of vehicle, the wife of
claimant has clearly deposed before the Court and still
her evidence is not accepted. The learned Member ought
to have considered that the claimant was entitled to
receive compensation under beneficial legislation. No
strict proof is expected in such cases. The claimant has
no reason to falsely implicate the offending vehicle.
The Tribunal ought to have accepted evidence of eye
witness - Rajendra Dhumal (CW-4). The Tribunal, however,
has ignored this material evidence. The Tribunal ought
to have considered that the claimant could not come to
the Tribunal to depose in support of his claim, because
he lost his speech. He submits that, however, his wife
Anupama (CW-1) has given evidence by filing affidavit of
examination-in-chief, in which she has clearly stated
(6) fa1944.18
that the claimant is unable to speak and give evidence as
he was not in a position to take oath. He submitted that
thus the evidence of CW-1 ought to have been accepted by
the Tribunal. Learned Advocate Mr.Kedar relied upon
following judgments, in support of his case :-
i) National Insurance Co. Ltd. Vs. Pranay
Sethi & Ors., 2017 AIR (SC) 5157.
ii) Ravi Vs. Narayan & Ors., 2011 AIR (SC)
1226.
iii) Divisional Controller, Maharashtra
State Road Transport Corporation Vs.
Kiran Laxman Chabukswar, F.A. No.4134
of 2016 (Bombay High Court, Aurangabad
Bench)
iv) New India Assurance Co. Ltd. Vs.
Pazhanimmal, LAWS (KER)-2011-7-245
(Kerala High Court).
07. The learned Advocate for the respondent
vehemently opposes the appeal stating that the learned
Tribunal has rightly dismissed the petition. It is
submitted that in the medical history itself it is stated
that the claimant received injury as his motor-cycle
slipped on the road. The claimant was taken to hospital
by his brother. At the time of admission in the hospital
itself, he could have stated that he met with an
(7) fa1944.18
accident. So far as lodging of the FIR is concerned, he
submits that the FIR was lodged after about one month.
Looking at all the attending circumstances, he submits,
that the entire story about the accident is doubtful.
Mere mentioning the vehicle is not sufficient to show
involvement of the offending vehicle. The owner or the
driver has not come forward to give any evidence.
08. This Court, thus, has to first see as to whether
the claim is rightly rejected and then to consider if at
all as to just and reasonable compensation.
09. This Court has gone through record and
proceedings of the Trial Court and the same is perused by
this Court with the assistance of learned Advocates for
the parties. First piece of evidence is in the nature of
document is FIR dated 06.08.2013 lodged by wife Anupama.
No reason is coming forward as to why there was so much
of delay in lodging the FIR. From the contents of the
FIR, it appears that the claimant was taken to hospital.
(8) fa1944.18
He was admitted to ICU. Since she herself was in panic
mood, she could not get any information about the
accident. After some time, she collected information
about the accident and thereafter lodged the FIR dated
06.08.2013. The time of accident is given as 8.30 p.m.
Second documentary evidence is Exh.27 - a letter issued
to Police Station dated 15.07.2013 from Shivaji Nagar
Police Station, Latur. In the said letter also it is
written that the claimant had fallen because of slipping
of the motor-cycle and MLC was sent.
10. From the evidence of CW-1 wife Anupama it is
seen that in the cross-examination she stated that the
accident was reported to Doctor at Ashvini Hospital. She
accepted that she lodged complaint in the police station
after one month of the accident. As the husband was in
the ICU, she could not lodge the complaint. She received
information from one Rajendra Dhumal about the accident
that one yellow and black coloured taxi had given dash.
On that, she collected information and found that it is
(9) fa1944.18
the offending vehicle involved in the accident. She
stated that police did not record statement of her
husband as he was discharged when police had been to
hospital. However, from the evidence of the police
officer-CW-6, it is seen that statement of Maharudra was
very much recorded. Thus, evidence of Anumapa is
negatived. Even in the evidence of CW-3 Dr. Sudhir
Chandrakant Fattepurkar, he stated that the information
about the accident was given by the relatives of the
patient, wherein it was informed that he slipped from the
motor-cycle. In the cross-examination, he specifically
stated that the claimant can speak mixed speech dyspesia.
He could not tell with certainty as to whether claimant
can give statement to police or not. From Exh.48 MLC, it
is seen that the history recorded was that the patient
slipped from the motor-cycle and received injury to his
seat.
11. One Rajendra Dhumal is examined as CW-4. In his
deposition, he stated that he saw the accident. Many
( 10 ) fa1944.18
persons assembled on seeing the accident. In the cross-
examination, he stated that on the date of accident, he
only stated to the police that the dash was given by one
black yellow jeep. He also informed to the relatives
that one black yellow jeep dashed Maharudra. This is
contrary to the evidence of CW-5 ASI-Guruling Wadkar, who
conducted investigation. In his deposition CW-5 stated
that he conducted spot panchanama. He did not find any
eye witness to the said accident.
12. Thus, considering all the evidence, this Court
finds that the involvement of the vehicle is not at all
proved. The police could not find single eye witness to
the incident. Though CW-4 Rajendra Dhumal stated that he
saw the incident, he could not give number of vehicle.
There is nothing as to why statement of this witness is
not recorded by the police. This Court finds that even
reason given for non-examination of the injured is also
found to be doubtful, as the police person deposed that
he recorded statement of Maharudra. The Doctor also
( 11 ) fa1944.18
stated that Maharudra can speak with mixed speech
dyspesia, whereas wife Anupama stated that the
claimant/injured is not in a position to speak. This
creates doubt about story of the claimant about the
accident and involvement of the vehicle.
13. In the case of Pranay Sethi (Supra), the Hon'ble
Apex Court has considered various aspects, mainly about
compensation to be paid and method of calculation of
compensation. There is no dispute about the same.
. So far as judgment in the case of Ravi (Supra)
is concerned, said judgment is on the point of delay and
latches in lodging the FIR. In the said case AW-1 Suresh
Kumar, the owner of the vehicle in the statement had
accepted that the truck was being driver by driver at the
time of accident. The Court considered that there was
admission by owner of the vehicle to prove that he was
aware of the accident and that his truck met with an
accident. In such case the Court has taken that the
delay in lodging FIR will not be a circumstance to deny
( 12 ) fa1944.18
the claim. In case in hand it is seen that CW-4 though
stated in the evidence that he saw the accident and even
informed to the relatives immediately, still he has not
come forward to record his statement before police as
from the evidence of ASI, it has come that he did not
find any eye witness to the incident. As such, there is
no proof about involvement of the vehicle and the
accident.
. So far as judgment in the case of Divisional
Controller, MSRTC (Supra) is concerned, this Court has
held that evidence should not be scrutinized in the
manner as is done in civil suit or criminal proceeding.
In the said case the claimant himself had come to the
Tribunal and explained the circumstances in which the
accident occurred by categorically describing the
incident. In this case, there is no such details to come
to conclusion, firstly there was accident and secondly
that involvement of the same vehicle which is alleged to
have been dashed the motor cycle. There is also no
evidence in respect of damage caused to the motor-cycle.
( 13 ) fa1944.18
Thus, in absence of above evidence, it is hard to believe
that the vehicle was involved in the accident.
. So far as judgment in the case of Pazhaniammal
(Supra) is concerned, Kerala High Court considered that
the Tribunal should play the dynamic role expected of
them under a welfare legislation in a socialist republic
effectively and expeditiously translate the compassion of
the legislature in to tangible benefits to the victim.
This Court does not find the facts of this case similar
to the case in hand.
14. Since the claim is not accepted on the ground of
involvement of vehicle, this Court considered the said
aspect. About other aspects, the finding already
recorded by the learned Member of the Tribunal is not
under challenge. This Court, therefore, need not look
into all the evidence. Even otherwise the learned Member
of the Tribunal has accepted evidence about injury and
disability. This Court finds that the learned Member of
the Tribunal has rightly considered the evidence and the
( 14 ) fa1944.18
case is properly appreciated. No interference is
required in the findings arrived at and the conclusion
drawn by the learned Member. This Court finds that the
appeal deserves to be dismissed and the same is hereby
dismissed.
[KISHORE C. SANT, J.]
snk/2023/DEC23/fa1944.18
