Sbi General Insurance Thr. Branch ... vs Smt. Shubhangi Ajay Pawar And ...
2023 Latest Caselaw 589 Bom

                                                        J-CAF-35-2023.odt
                           1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
          NAGPUR BENCH, NAGPUR.
      CIVIL APPLICATION (F) NO.35 OF 2023
                      IN
          FIRST APPEAL NO.804 OF 2022

  APPELLANT          :      The S. B. I. General Insurance,
                            through its Branch Manager "Sanjay
  (Ori.Res. No. 2)
                            Tidke Bhawan", Vijay Colony,
                            Rukhmini Nagar, Beside Yadgir
                            Hospital, Congress Nagar Road,
                            Amravati. Tq & Dist; Amravati (M.S)
                            Through its Nagpur Branch, At 148,
                            3rd floor above S.B.I. Personal Banking
                            Branch Thapar Enclave, Maharaj Bag,
                            Ramdas peth, Nagpur.

                            ..VERSUS..

  RESPONDENTS : 1. Smt. Shubhangi Ajay Pawar,
  (Ori.Peti.No.1 to 3) Aged 40 Yrs Occ-Home maker

                         2. Vashistha Ajay Pawar,
                            Aged about 15 yrs, Occu-Education
                         3. Ku. Sai Ajay Pawar,
                            Aged- 9Yrs, Occu- Education
                            (Respondent No.1 is mother Guardian
                            for Minors Respondent No.2 and 3)

                            (All R/o. Pawar Nagar, Near Gopal
                            Nagar, Tq and Dist Amravati)

                         4. Vijay Ratanlal Taori,
                            Aged- 40yrs, Occu-Driver/Owner, Plot
                            no.3, Anmol Nagar near, Akshay patra
                            Vathora Squar Nagpur.
                                                                                          J-CAF-35-2023.odt
                                            2

-----------------------------------------------------------------------------------------
    Mrs Mrunal Naik, Advocate for the Appellant.
    Mr Nilesh Bhaurao Raut, Advocate for the Respondents No.1 to 3.
--------------------------------------------------------------------------------------------------------

       CORAM :             VINAY JOSHI AND VALMIKI SA MENEZES, JJ.

       DATE           :    17th JANUARY, 2023.


   ORAL JUDGMENT : (PER : VINAY JOSHI, J.)


   .               Heard learned Counsel appearing for the parties.

2. This is an application of original claimants seeking

permission to withdraw the compensation amount, which has

been deposited by Appellant insurer in this Court. This

application is strongly resisted by Mrs Naik, learned Counsel

appearing for Appellant insurer, primly contending that the

offending vehicle, which was insured with the company, was

never involved in the accident.

3. We have gone through the impugned judgment as

well as the entire record and proceedings. On 14.09.2014,

while deceased Ajay Pawar was travelling by Bolero Car

bearing registration No.MH-30-AF-5738 from Amravati to

Akola, the car was made to halt due to burst of tyre. While

deceased alongwith his two companions alighted from the J-CAF-35-2023.odt

vehicle to change the tyre, at that time, one white colour

Maruti Swift car came in high speed, gave dash to Ajay, who

died on the spot. On such occurrence, widow alongwith two

minor children of deceased have applied to the Motor

Accident Claim Tribunal (for short "Tribunal") in terms of

Section 166 of the Motor Vehicles Act, 1988 (for short "M. V.

Act"), claiming compensation on account of death of Ajay in

vehicular accident. In claim petition, opponent No.1 was

owner-cum-driver of swift car whilst opponent No.2 was

insurer with whom, swift car was admittedly insured.

4. In claim petition, copy of First Information Report

(FIR), Spot Panchanama, Inquest Panchanama, Insurance

Policy and related documents have been produced. The

defence of owner of offending vehicle and insurer was about

non-involvement of swift car in the accident. The Tribunal

has considered the said defence and ultimately held the

involvement of offending car and accordingly, passed the

Award by quantifying compensation to the tune of

Rs.75,70,000/- alongwith interest @ 7% per annum from the

date of petition. In this appeal, the Insurance Company has J-CAF-35-2023.odt

deposited Rs.1,16,29,842/-

5. In natural course, the original claimants, who are

widow and two minor children of deceased, are well entitled

for withdrawal of amount without much resistance. However,

in this case, a specific defence has been taken by owner and

insurer about non-involvement of Maruti Swift Car bearing

registration No.MH-31-DC-7294.

6. We have heard exhaustive submissions of both sides

only from the point to see the prima facie involvement of

swift car so as to decide entitlement for withdrawal.

Undeniably, on the date of accident itself within few hours

FIR has been lodged by one of the eye witness Mr Raut,

wherein he has stated that he has witnessed white colour swift

car giving dash to Ajay. He has stated in FIR that though it

was dark, in the tail light of vehicle, he has seen the

registration number of offending car as MH-31-DC-7294.

Before Tribunal, the informant, who was the eye witness to

the occurrence has led evidence in the similar fashion. Besides

that in Trial Court, the claimants have led evidence of

concerned Investigating Officer. We have gone through his J-CAF-35-2023.odt

evidence, wherein he deposed that after accident, he obtained

address of the owner of offending vehicle and approached to

his residence, but the owner and vehicle was missing. After

few days, he again went and found that the vehicle appears to

have been repaired at front portion and he found it to be

doubtful. Moreover, it is submitted on behalf of claimants that

the Police have completed investigation and having been

found sufficient material about involvement of offending

vehicle, filed a charge-sheet against original Respondent No.1

for the offence punishable under Section 279 and 304A of

the Indian Penal Code, 1860. On the strength of said material

as well as finding recorded by Tribunal, it has been argued

that the involvement has been proved, and thus, the claimants

are entitled for withdrawal.

7. On the other hand, Mrs Mrunal Naik, learned

Counsel appearing for insurer resisted this application by

contending that since involvement of vehicle has not been

proved, it is not desirable to release the amount before

decision of appeal. It has been stated that the accident

occurred in dark hours, and therefore, it was not possible to J-CAF-35-2023.odt

see registration number of the vehicle which gave dash. It has

been argued that besides informant, no other eye witness has

been examined to corroborate the testimony of informant

about involvement of offending vehicle. It is submitted that as

per Spot Panchanama, brake mark of tyre was having width of

8 inches whilst as per owner of swift car, the width of tyre of

swift is 5.6 inches and thus, there is no possibility of

involvement of swift car. It is submitted that the accident was

so sever that it is not possible by a smaller vehicle like a swift

car.

8. At the inception, we made it clear that since the

appeal is pending for adjudication, we are not making

exhaustive comments on the issue involved. Prima facie, we

find that within few hours from the occurrence, one of the eye

witness has lodged report with specific description of car

alongwith registration number. Obviously, the owner of

offending vehicle is interested to deny involvement, therefore

we do not wish to lay much faith on his interested words.

Pertinent to note that on the basis of FIR, Police completed

investigation concluding that the vehicle was involved and J-CAF-35-2023.odt

filed charge-sheet against the owner of vehicle. Apparently, till

date the owner has not put any grievance about filing of so

called false FIR or charge-sheet nor approached for quashing

of the same. Yet, the criminal case is pending before Trial

Court. Moreover, the Investigating Officer led evidence that

when he approached to the owner of offending vehicle, the

vehicle was found to be repaired. Thus, prima facie, we found

the involvement of vehicle in the accident. We must note that

in written statement, the owner of swift car has admitted that

at relevant night, he has passed from the said road and also

stated in evidence that due to accident, some people tried to

stop him. This also indicates the presence of the owner of

offending vehicle on the spot at relevant time.

9. On the other hand, a lady with two minor children

are coming before Court for seeking withdrawal of her

rightful claim, which has been adjudicated by Tribunal. The

very purpose of beneficial legislation is to provide means to a

shelter-less family due to sudden death of bread winner. In the

circumstances, we find absolutely no reason to withhold their

money as it would put them in more misery than the loss J-CAF-35-2023.odt

which they suffer due to death of Karta of the family. In view

of above, we deem it desirable to allow partial withdrawal.

Hence, the following order :

ORDER

i) Civil Application is partly allowed.

ii) The original claimants are permitted to withdraw

the sum of Rs.60,00,000/- on furnishing undertaking to the

concerned Tribunal that withdrawal is subject to the decision

of appeal. Registry of this Court is requested to transmit

amount of Rs.60,00,000/- to concerned Tribunal for its

disbursal as directed.

iii) On receipt of amount of Rs.60,00,000/-, Tribunal

shall invest Rs.30,00,000/- in equal share in the name of two

minor children through their natural guardian mother, till

they attain majority, in any Nationalized Bank of the choice of

guardian mother.

iv) Guardian mother is entitled to receive periodical

interest on said deposits for the maintenance of two minor

children monthly or quarterly as per her choice.

J-CAF-35-2023.odt

v) The remaining amount of Rs.30,00,000/- be

disbursed to the claimant widow.

vi) The Registry of this Court is directed to invest the

remaining amount in fixed deposit.

10. The above observations are made only for the

purpose of deciding the application for withdrawal of amount,

which has no impact on the merits of appeal. Appellant is

requested to file paper-book.

(VALMIKI SA MENEZES, J.) (VINAY JOSHI, J.)

TAMBE

Digitally Signed By:ASHISH ASHOKRAO TAMBE Personal Assistant to Hon'ble JUDGE Signing Date:21.01.2023 12:49