Bombay High Court
Hdfc Ergo General Insurance Co. Ltd., ... vs Ramesh Bajirao Chemte And Anr on 12 August, 2024
2024:BHC-AUG:17677
(1) fa309.21
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 309 OF 2021
HDFC ERGO General Insurance Company Limited .. Appellant
Through its Branch manager, [Ori. Respondent
Sai Icon. 1st Floor, In front of Axis Bank, No.2]
Savedi Road, Ahmednagar.
Through : Its Authorized Signatory,
Having branch office at Renuka Complex,
2nd Floor, Opposite to Motiwala Complex,
Nirala Bazar, Aurangabad,
Tq. & Dist. Aurangabad.
VERSUS
1) Ramesh Bajirao Chemte .. Respondents
Age. 30 years, Occ. Service, [Res.No.1 - ori
R/o. Bhalwani, Tq. Parner, claimant, Res.No.2
Dist. Ahmednagar. - ori.Res.No.1]
2) Shaikh Nijam Abdul
Age. 34 years, Occ.Agent,
R/o. Jakhangaon, Tq. Nagar,
Dist. Ahmednagar.
Mr.Mohit R. Deshmukh, Advocate for the appellant.
Mr.Sachin S. Kotkar, Advocate for respondent No.1.
None for respondent No.2 though served.
CORAM : KISHORE C. SANT, J.
RESERVED ON : 22.07.2024
PRONOUNCED ON : 12.08.2024
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J U D G M E N T :
-
01. Heard learned Advocates for the parties. Perused record and
proceedings.
02. Admit.
03. This appeal arises out of the judgment and order dated
31.08.2019 passed by the learned Member, Motor Accident Claims
Tribunal, Ahmednagar in MACP No.538 of 2017. This appeal is filed by
the insurance company, original opponent No.2 in the claim petition.
Respondent No.1 is original claimant and respondent No.2 is owner of the
offending vehicle. For the purpose of convenience, the parties are
referred to as per their status in the claim petition.
04. The claimant filed claim petition alleging that on 11.06.2017
at about 9.30 a.m. he met with an accident on Nagar-Kalyan road within
the limits of village Bhalwani in front of one Nageshwar Petrol Pump,
while travelling on motorcycle bearing registration No. MH-16-AW-01110
owned by his cousin Nanasaheb Chemte. After filling petrol in the
motorcycle, while coming on the road, one Activa Scooter bearing
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registration No. MH-16-BK-7486 being driven in rash and negligent
manner, dashed his motorcycle with force. The claimant suffered head
injury as well as fracture to thumb along with other injuries. He became
unconscious. He was taken to hospital, namely, Anand Rishi Hospital.
Since he had received injury to his brain and was serious, he was shifted
to Jahangir Hospital, Pune after preliminary treatment. For 16 days he
was unconscious. He suffered permanent disablement. He was again
required to be admitted in the hospital from 21.09.2017 till 26.09.2017.
He has suffered medical expenses of Rs. 10 to 12 lakhs and also would
require treatment in future. He was 27 years of age and at the time of
accident he was serving with Nanasaheb Chemte as hotel manager. His
earning was Rs.9000/- per month. Because of the permanent
disablement, now he has lost earning capacity. He would require
attendant even in future. Now he is required to travel by special vehicle.
On all these grounds, he prayed for compensation of Rs.20 lakhs.
05. Opponent No.1 in his written statement admitted the fact
that his Activa Scooter gave dash to the motorcycle, however, he denied
that he was driving the vehicle in rash and negligent manner. He denied
the liability to pay compensation.
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06. Opponent No.2 - Insurance Company admitted that the
Activa Scooter was insured. Except this admission, the claim is denied.
It is defence of the insurance company that the driver of the Activa
Scooter was not having valid and effective licence at the material time.
There was breach of condition of the policy and therefore it is not liable
to pay compensation.
07. The learned Member framed issues. The claimant in support
of his case examined himself as CW-1, Nanasaheb Chemte as CW-2, Dr.
Bharat Naik as CW-3, who issued permanent disability certificate. He
further examined one Ajinath Baban Bhagwat as CW-4 and Shivaji
Rajaram Gunjal as CW-5 - witnesses to the occurance. He placed
reliance on the documents i.e. FIR (Exh.21), spot panchnama of incident
(Exh.22), MLC issued by Jahangir Hospital (Exh.23), report of S.S. Alate-
Police Officer of Koregaon Park Police Station (Exh.24), injury certificate
dated 07.08.2017 issued by Jahangir Hospital (Exh.25) and medical bills.
To prove his income, he produced on record certificate issued by owner
of hotel PW-2 (Exh.40), where he was working as manager.
08. As against this evidence, the owner and the insurance
company did not adduce any evidence. The learned Member on the basis
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of the evidence, oral as well as documentary, allowed the claim partly
holding that the claimant proved the accident and that he received injury
in the accident. Notional income is considered to be Rs.6500/- per
month. Multiplier of 17 is applied. Physical disability is taken to the
extent of 45%. Loss of earning is taken to be 60%. On considering this,
it held that the amount of compensation would be Rs.7,95,600/- would
be amount including compensation for loss of pleasure in the life, medical
expenses etc.
09. Learned Advocate Mr. Deshmukh for the insurance company
argued that the accident took place on 11.06.2017. The FIR was lodged
after about one and half month on 26.07.2017. Though the claimant was
admitted to the hospital, still after discharge from hospital, there is delay
of 21 days in lodging the FIR. The accident was reported to police by
Nanasaheb Chemte, cousin of the claimant who stated that the claimant
was sent to fill up petrol in the motorcycle. Since the owner of the Activa
Scooter was a person known to the informant, the claim was lodged
belatedly. Except this, no reasons are assigned in the FIR for the delay.
He thus submits that the involvement of the vehicle itself is not proved.
There is nothing on record to show that anybody tried to stop the Activa
Scooter.
(6) fa309.21
10. CW-4 - Ajinath and CW-5 - Shivaji though claimed to be eye-
witnesses, did not gave any number of the vehicle in their statements
before the police. Neither they lodged complaint with police. The time of
accident is 9.30 a.m. in front of petrol pump. However, none is
examined from the petrol pump. The admission of the owner of vehicle
also creates doubt. In the Jahangir Hospital, the police had been to
collect information on the date of accident itself. Even station diary entry
is taken at the instance of CW-2 - Nanasaheb, where he had given
information that unknown two wheeler vehicle had given a dash. Even in
the record of the hospital, history recorded is only road accident.
11. So far as disability certificate is concerned, learned Advocate
submits that CW-3 the Doctor who issued disability certificate has not
treated the claimant. He has mentioned the extent of disability to be
45% and head injury, on the basis of information given by patient
himself. The learned Tribunal wrongly taken the loss of 60% earning
capacity. He thus prayed that the learned Tribunal has failed to consider
all these aspects and has wrongly allowed the petition.
12. The learned Advocate Mr.Kotkar for the claimant vehemently
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opposed the appeal. He submits that the delay in lodging FIR is properly
explained. The police at Pune had forwarded the report to the concerned
police station on 21.06.2017. CW-4 - Ajinath has given number of
vehicle in his evidence. Even the charge-sheet was filed on the basis of
statement of CW-4-Ajinath. There is sufficient proof to show that the
claimant was working as a manager in the hotel. Disability Certificate of
the CW-3 Doctor clearly shows that the claimant has suffered disability to
the extent of 45%. On considering overall evidence, the Reference Court
has rightly considered loss of earning capacity to be 60% and has
awarded compensation.
13. This Court has considered the evidence of the claimant's
witnesses and the FIR. From the FIR it is seen that it was lodged on
26.07.2017. No reason for delay is stated in the FIR. The evidence of
the claimant is by way of affidavit in the line of claim petition. In cross-
examination, he could not state as to whether people had gathered after
the accident saying that he does not remember. He could not state as to
whether information of the accident was given to the police. He could
not tell as to who was driving the Activa Scooter. This witness accepted
the contents of FIR. In the report by Koregaon Park Police Station dated
21.06.2017, it is only mentioned that two wheeler gave dash to the
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vehicle of the claimant and no other particulars are given. It thus shows
that CW-2 Nanasaheb Chemte, who is examined as witness, could not
give particulars and number of the offending vehicle.
14. CW-2 Nanasaheb Chemte stated that the claimant met with
accident due to dash given by the offending vehicle. It was driven by
owner of the vehicle. This witness and CW-4 - Ajinath and CW-5-Shivaji
called ambulance. He further stated that the hotel where the claimant
works belong to Baby Sharad Dere, however, he runs the said hotel. In
the cross-examination, he accepted that he had not obtained any licence
to run the hotel or dhaba. He admitted that near the spot of accident 10
- 15 persons had gathered. He produced on record certificate (Exh.40)
showing that he was paying salary of Rs.9000/- per month to the
claimant.
15. PW-3-Dr. Bharat Naik is the Doctor who issued certificate of
disability. In the cross-examination he accepted that he never treated
the patient. He did not consult the Doctor who treated the claimant. He
had examined patient clinically and radiologically. He could not explain
as to what tests he applied to ascertain loss of memory of the patient.
He accepted that he stated the fact that patient cannot work
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independently on the basis of representation made by patient to that
effect.
16. CW-4 - Ajinath stated that the driver of Activa Scooter ran
away after the accident. The claimant was taken to hospital by him with
CW-2 Nanasaheb.
17. CW-5 stated that on hearing sound of the accident, he went
to the spot. CW-2 Nanansaheb and CW-4 Ajinath took the patient to the
Anand Rishi Hospital. In the cross-examination, he accepted that he saw
the accident only after hearing the sound. He specifically answered that
CW-2 Nanasaheb and CW-4 Ajinath were not present on the spot of
accident, but they were coming to the spot. He stated that he had
written number of Activa Scooter in the diary, but the diary was not
brought in the Court. He even did not hand over said diary to police.
Though rent agreement between CW-2 and owner of the hotel is on
record, this Court does not find it to be material.
18. This Court has examined as to whether there was sufficient
material to prove that the alleged offending vehicle. The undisputed fact
is that accident took place on 11.06.2017. The claimant was admitted to
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the hospital and was discharged on 05.07.2017. The FIR was lodged on
26.07.2017, after 45 days of the accident by Nanasaheb-CW-2. This is
even 21 days after discharge of the claimant from hospital. There is no
reason coming forward for the delay in lodging the FIR. The constable
from Koregaon Park Police Station had been to the hospital, on getting
information about admission of the claimant. No information about
Activa vehicle was given to him by CW-2 Nanasaheb though he was very
much present in the hospital with whom enquiry was made by the
constable at Koregaon Park Police Station. In that statement, even name
of model of vehicle is also not mentioned.
19. Though the owner accepted the liability, it needs to be
considered as to how far such admission is material. For this purpose,
learned Advocate Mr. Deshmukh relied upon the judgments in the cases
of Bajaj Allianz General Insurance Co.Ltd. Vs. Vanita w/o. Ganesh
Gadakh (First Appeal No.2969 of 2013) and New India Assurance
Co. Ltd.Vs. Laxman s/o. Dadarao Karpe & Ors. (First Appeal
No.2973 of 2013). In the case of United India Insurance Co. Ltd.
Vs. Shila Datta & Ors., AIR 2012 SC 86, the Hon'ble Apex Court has
considered sections 168 and 170 of the Motor Vehicles Act [for short "MV
Act"]. It is held that the insurance company is entitled to contest the
( 11 ) fa309.21
matter by raising grounds without restricting grounds available under
section 149(2) of the MV Act. Learned Advocate Mr. Deshmukh thus
submits that though the owner has accepted the liability, the insurance
company can take all available defences under sections 168 and 170 of
the MV Act. In the case of Bajaj Allianz General Insurance Co. Ltd.
Vs. Tufel Habib Bagvan & Anr., 2016(4) ALL MR 386, it is held that
the insurance company being a party has right to contest the claim on all
possible grounds, irrespective of restrictions contained in section 149(2)
of the MV Act, even without seeking permission of the Tribunal.
20. So far as effect of admission of the owner, learned Advocate
for the appellant relied upon judgment in the case of Vanita w/o
Ganesh Gadakh (supra). The Court observed that the owner and the
driver of the vehicle are conveniently coming with a stand admitting
involvement of the vehicle. However, there is no explanation as to why
they themselves have not approached the police earlier. There is nothing
to show as to what prevented them from approaching the police.
21. In the judgment of this Court at Aurangabad Bench in the
case of New India Assurance Company Ltd. Vs. Shaikh Ashiya
wd/o. Shaikh Javed & Ors. (First Appeal No.130 of 2014), this
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Court had an occasion to consider the effect of admission of owner of
vehicle about involvement in the accident. In that case, the report was
initially lodged against unknown vehicle. During the course of
investigation, the involvement of the offending vehicle came to light. It
is, thereafter, the driver of the said vehicle was prosecuted. It is held
that involvement of particular vehicle in an accident is a question of fact
required to be answered in the facts and circumstances of each case.
Though the nature of proceeding under section 166 of the MV Act is
summary in nature, no strict rules of evidence are applicable, still there
has to be some material to suggest or indicate involvement of particular
vehicle. In that case owner had admitted involvement of his auto
rickshaw and same was not treated to be admission in strict sense. The
judgment in the case of Laxman s/o. Dadarao Karpe (supra) is on
the same line.
22. On considering the judgment in the case of Bajaj Allianz
General Insurance Co. Ltd. Vs. Manisha w/o. Lahu Kale & Ors.
(First Appeal No.2742 of 2015), it is held that non-contest by truck
owner and driver before the Tribunal indicates collusion in between the
claimants and owner. Mere admission will not show that the vehicle was
involved in the accident.
( 13 ) fa309.21
23. Considering all these judgments, it is clear that even if
involvement of the vehicle is admitted by the owner that itself is of no
consequence as there is no serious contest by them. The another thing
that even if there is no contest by the owner and the driver of the
vehicle, insurance company can still very much contest the claim petition
taking all the defenses available. In this case, the involvement of the
Activa vehicle is accepted by the owner. It is further seen that the claim
is not contested by owner but contest is by the insurance company only.
The insurance company was thus within its right to contest the claim
petition by taking all possible defenses. From the evidence, it is clear
that the involvement of Activa vehicle has come to light almost after 45
days of happening of the accident. If the owner of the vehicle was really
concerned, he could have approached the police to lodge report. Even
CW-4 -Ajinath and CW-5 - Shivaji though have stated that they
witnessed the accident, did not make any attempt to give information to
the police. CW-2 Nanasaheb though was asked by the constable from
Koregaon Park Police Station, Pune, still he did not give any information
to the constable. All these things clearly show that the story of
involvement of Activa Scooter is concocted and cannot be believed.
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24. The learned Member has failed to appreciate the case of the
insurance company that the involvement of the offending vehicle is not
proved. So far as disability is concerned, CW-3 Doctor has not treated
the claimant. The disability is stated only on the representation of the
claimant. He has also not shown as to how he assessed the disability.
The learned Member has thus committed error in relying upon evidence
of the Doctor and taking the disability as proved. In view of above
discussion, this Court finds that the judgment and order deserves to be
quashed and set aside, by dismissing the claim petition. Hence,
following order :-
ORDER
(i) Appeal is allowed.
(ii) The judgment and order dated 31.08.2019 passed by
the learned Member, Motor Accident Claims Tribunal,
Ahmednagar in MACP No.538 of 2017 stands quashed and set
aside.
(iii) The amount deposited, if any, in this Court pursuant to
the impugned judgment and order be refunded to the
appellant - insurance company.
(iv) Consequences to follow.
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(v) No order as to costs.
[KISHORE C. SANT, J.]
snk/2024/AUG24/fa309.21
