Bombay High Court
The Brnach Manager The New India ... vs Shrikant Trimbak Pawar on 7 August, 2024
2024:BHC-AUG:17219
FA-1593-2022.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 1593 OF 2022
WITH CA/10175/2022 & CA/15336/2022
The Branch Manager, New India
Assurance Co. Ltd ...Appellant
Versus
Shrikant Trimbak Pawar & Anr ...Respondents
***
• Mr. M. R. Deshmukh, Advocate for the Appellant
• Mr. D. R. Jaybhar & Mr. S. D. Jaybhar, Advocates for
Respondent No. 1
***
CORAM : KISHORE C. SANT, J
RESERVED ON : JULY 20, 2024
PRONOUNCED ON : AUGUST 07, 2024
ORDER :
1. This appeal arises out of judgment and award
passed by the learned Chairman, Motor Accident Claims
Tribunal, Ahmednagar in MACP No. 495/2019 dated
01.02.2022. This appeal is filed by Insurance Company/
Original Respondent No. 2. Respondent No. 1 is the
Claimant before the claims Tribunal. By way of impugned
judgment and award, learned Chairman has partly allowed
the claim Petition directing the Respondents therein to
pay total compensation of Rs. 15,85,641/- to the
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Claimant including no fault liability amount along with
interest at the rate 7.5% p.a. from the date of
Petition i.e., 09.10.2019. Present claim is the injury
claim.
2. For the purpose of convenience, parties are
referred to as per their original status in the claim
Petition.
3. It is the case of the Claimant that he
received an injury in an accident dated 18.05.2019 at
09.30 pm near Daula Wadgaon on Ahmednagar Beed road. He
was traveling in a vehicle, namely, Swift Dzire bearing
registration no. MH-14-FC-1964 owned by Respondent
No.1. It is further stated that Respondent No. 3 was
driving a car in high speed in rash and negligent
manner and rammed into a tractor trolley. The claimant
received injuries as follows: Blunt Abdominal Trauma
Grade III Splenic Laceration, Post Explorative
Laparotomy & Spleenectomy Status Foecal peritonitis
Reexploration & Hemicolectomy, Pancreatic Necrosectomty
Fracture proximal Left Humerus - Post Orif Chronic
Pancreatitis with Chronic Peripancreatic fluid
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collection DM Type II and other injuries. His left
shoulder got fracture. Claimant was of 45 years of age
on the date of accident. His earning was Rs. 15,000/-
per month. He was working as driver. He was also having
agriculture income of Rs. 1,00,000/- p.a. Claimant was
required to incur expenses of Rs. 10,50,000/- for
medical treatment and Rs. 25,000/- for conveyance to
the Hospital and towards special diet. He further
needed Rs. 2,00,000/- for treatment by Orthopedic
Surgeon. His further case is that he suffered permanent
disability to the extent of 45% & has lost 75% earning
capacity. He further prayed Rs. 25,000/- towards pain
and suffering. Total compensation sought was Rs.
20,00,000/- along with 12% interest.
4. The owner of the vehicle did not appear and
the Petition proceeded ex parte against him. Respondent
No. 2/Insurance Company filed written statement.
Insurance policy is admitted, however, accident and the
liability to pay compensation are denied. The owner of
tractor trolley was not added as party. Swift Dzire car
was plying without valid permit and fitness certificate
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for its use. The injuries are simple in nature and
there is no permanent disability. Respondent No. 3, a
driver, has accepted that he was driving the vehicle at
the time of accident. He pleaded that he was having a
valid and effective license. His car was in moderate
speed and there was no negligence on his part.
5. Learned Chairman considered oral as well as
documentary evidence and held that though injuries are
proved, Applicant has not suffered permanent
disability. So far as negligence is concerned, it is
held that the driver of the offending vehicle was
negligent. About stand of the insurance company of
breach of policy is concerned, Tribunal held that there
is no breach of policy and passed impugned judgment and
award. On all these, Insurance Company has approached
this Court.
6. Mr. Deshmukh, learned Advocate for the
Appellant, vehemently argued the Appeal. He submits
that in the present case there is no evidence to show
that the claimant has received a permanent disability.
In support of claim, claimant has examined only himself
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and doctor who has issued disability certificate.
Doctor who has issued disability certificate is not a
treating doctor. The said doctor has not examined the
claimant. The nature of injuries as shown are not
possible by an accident. The claimant was already
suffering from the diseases. The doctor however has
stated that all the injuries are due to accident, which
is not correct. The only fracture injury can be said to
have been due to accident. The other injuries are not
due to accident. He took this Court to the evidence of
claimant and specially to his cross-examination.
He strenuously argued that there is no
evidence to show that the claimant was sitting in the
car. The entire evidence show that there were only two
persons in the Dzire car i.e., owner and his brother,
who was driving vehicle. In the statement of the person
driving the car there is no reference of any third
person sitting in the car i.e., claimant. He further
argued that it is after 83 days of accident, Sunil
Thorat, owner of nearby hotel, gave statement to the
police that there was third person sitting in the car
who was taken to the hospital. However, the said hotel
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owner is also not examined. The investigating officer
who conducted investigation is also not examined. All
these factors along with nature of injuries show that
the claimant was not at all sitting in the vehicle when
the accident took place. In the alternative, he submits
that the compensation awarded is on higher side. In
support of his submissions he relied upon following
judgments: Bajaj Allianz General Insurance Co. Ltd vs.
Manisha Lahu Kale, First Appeal No. 2742/2015, New
India Assurance Co. Ltd vs. Ashalata Suryakant Patil
and Ors, First Appeal No. 2829/2015, Bajaj Allianz
General Insurance Co. Ltd vs. Vanita Ganesh Gadakh and
Ors, First Appeal No. 2968/2013, Kalpana Rajendra
Kothari and Ors vs. Santosh Arvind Jangam and Anr, 2019
SCC OnLine Bom 2283.
7. Mr. Jaybhar, learned Advocate for Respondent
No. 1, vehemently submits that Appeal deserves to be
dismissed. In the present case, name of the passenger
came late in the investigation as he was all the while
in the hospital after the accident. He submits that
though this statement dated 11.08.2019 of the police
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states that there were only two persons in the vehicle,
this claimant was sitting in the same car. Santosh
Thorat, the hotel owner, has clearly stated before
police that there was third person sitting in the
vehicle and he was taken to the hospital. So far as the
medical expenses are concerned, he submits that there
are bills on record which are not in dispute. The
statement of the claimant before the police dated
25.07.2019 clearly shows that he had taken lift in the
Swift Dzire car. The driver was driving the car in high
speed. It gave dash to trolley of tractor carrying
sugarcane and in that accident, claimant received
injury to his abdomen and chest. Since he was admitted
in the hospital for more than 1½ month, he could not
immediately come to record statement. In support of his
submissions, he relied upon following judgments: Bimla
Devi and Ors vs. Himachal Road Transport Corporation
and Ors, AIR 2009 SC 2819, Ravi vs. Badrinarayan and
Ors, AIR 2011 SC 1226 & New India Assurance Co. Ltd vs.
Mita Samanta and Ors, 2009 SCC OnLine Cal 2142.
8. Considering the arguments and from the record
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it is clear that after 83 days of the accident for the
first time a statement came to be recorded before the
police that the claimant was sitting the Swift Dzire
car. The evidence of doctor also shows that he has not
treated the claimant. He has only issued a disability
certificate to the claimant. The claimant has not
examined any doctor who treated him after the accident.
He has only produced the medical bills. There is no
convincing reason coming-forth as to why the treating
doctor is not examined.
9. Coming to the judgment cited before this Court
in case of Manish Lahu Kale wherein this Court has held
that initial burden always on lies on the claimant to
show involvement of the vehicle in an accident and that
he has received injuries. So also it is for the
claimant to establish the claim though beyond
reasonable doubt is not expected. In that case only
certified copy of final report filed by the
investigating officer was produced on record. Even if
the claim is not contested by the truck owner and
driver, itself is not indicative of the involvement in
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the accident. There was collusion between the parties
and, therefore, the claim was not contested by the
owner and the driver.
10. In case of Ashalata Suryakant Patil this Court
held that though strict proof of involvement is not
required, still it is required to show some substance.
The investigation papers are not sufficient to draw
inference of involvement of the vehicle. In case of
Vanita Ganesh Gadakh there was a admission of the
driver in the written statement about involvement of
the truck in an accident. However, in that case also
the statement before the police was made after much
delay and, therefore, Court held that it creates
serious doubt about involvement of the vehicle in an
accident. In case of Kalpana Rajendra Kothari this
Court had considered a postmortem report, inquest
panchnama to show that the deceased died in an
accident. What was not proved is that the accident was
caused by the rider of the bullet motorcycle against
whom claim was made. This Court disbelieved the
involvement of the vehicle allegedly involved in the
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accident.
11. Considering the facts in the light of above
judgments, it is clear that the claimant has not even
prima facie proved involvement of the Swift Dzire car
in an accident.
12. Respondent relied upon judgment in Bimla Devi
wherein it is held that the Court/Tribunal has to take
a holistic view of the matter and strict proof of the
accident was not required. In case of Ravi the Hon'ble
Supreme Court has considered that mere delay in lodging
FIR cannot be a ground to doubt claimants case knowing
the Indian conditions. The purpose of lodging FIR is
primarily to intimate the police about a accident and
nothing more. Case of Mita Samanta is on the similar
lines. On the facts, this Court find that these
judgments are not applicable in present case.
13. After looking into the record, it is clear
that in the present case what is on record to show
involvement is only a statement of the claimant and
statement of the hotel owner, which is recorded after
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83 days of the accident. The said hotel owner is also
not examined in the Court. Doctor's evidence is also
not inspiring confidence of the Court at any rate which
will not show the involvement of the Swift Dzire
vehicle in an accident in which the claimant has
received the injuries. On such kind of evidence, it
cannot be said that the claimant has discharged even
initial burden to prove his case. For all these
reasons, the Court is persuaded to hold that the
impugned judgment and award needs to be quashed and set
aside.
14. In view of above discussion, Appeal stands
allowed. Impugned judgment and award dated 01.02.2022
passed by the learned Chairman, Motor Accident Claims
Tribunal, Ahmednagar in MACP No. 495/2019 is quashed
and set aside. Claim Petition stands dismissed. No
order as to costs. Necessary consequences to follow.
15. Pending civil applications, if any, stand
disposed of.
(KISHORE C. SANT, J.)
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16. At this stage, learned Counsel for the
Appellant makes a request that office be directed to
refund the amount lying in this Court to the Appellant.
17. Office is, therefore, directed to refund the
amount deposited in the office of this Court along with
accrued interest.
(KISHORE C. SANT, J.)
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