[Cites 4, Cited by 0]
Bombay High Court
New India Assurance Company Ltd. Thr. ... vs Manisha Sampat Bhange And Others on 4 December, 2025
2025:BHC-AUG:33524
FA-5065-2017.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 5065 OF 2017
WITH CIVIL APPLICATION NO. 15925/2016
New India Assurance Company Ltd.,
Through Branch Manager,
Branch Office at Shivaji Chowk, Jalna Road,
Beed, Taluka & District Beed
Through its Divisional Manager/Authorized
Signatory, Adalat Road, Aurangabad ...Appellant
(Org. Respondent No.2)
Versus
1) Manisha w/o Sampat Bhange,
Age: 24 years, Occu: Household,
2) Shivam S/o. Sampat Bhange,
Age: 5 years, Occu. Nil,
3) Jayesh S/o Sampat Bhange,
Age: 3 years, Occu. Nil,
No. 2 & 3 are Minors, U/g of their mother,
Respondent No. 1 Manisha
4) Ganpat S/o Babasaheb Bhange,
Age: 49 years, Occu: Nil,
5) Kamal W/o. Ganpat Bhange,
Age: 57 years, Occu. Household,
All R/o Jamgaon,
Taluka Ashti, District Beed.
6) Hanumant S/o. Balu Dhonde,
Age: Major, Occu. Owner-Driver,
R/o. Murshadpur, Taluka Ashti,
District Beed. ...Respondents
(Rspdt Nos. 1 to 5 - Org. Claimants
Rspdt No. 6 - Org. Rspdt Nos.1)
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***
• Mr. S. S. Rathi, Advocate for the Appellant
• Mr. S. B. Choudhari, Advocate for the Respondent Nos. 1 to 5
***
CORAM : ABHAY S. WAGHWASE, J
RESERVED ON : DECEMBER 03, 2025
PRONOUNCED ON : DECEMBER 04, 2025
JUDGMENT :
1. In this appeal, at the instance of insurance company, there is
challenge to the judgment and order dated 07.06.2016 passed by learned
MACT, Beed in MACP No. 93/2014 filed by heirs of deceased Sampat under
Section 166 of the Motor Vehicles Act.
2. MACP No. 93/2014 was filed before Tribunal, Beed by heirs of
Sampat Bhange on the premise that on 06.12.2013 around 08.00 pm while
deceased was traveling with pillion rider Shafiq Gani Khan Pathan on
motorcycle bearing no. MH-23-AG-2451 near Pavansut Mangal Karyalaya on
Beed-Nagar Road dash was given to the motorcycle by truck bearing no.
MH-18-M-8327 coming from rear side. Due to the dash, deceased suffered
head injury and while undergoing treatment, he succumbed to the same.
Having lost source of income, his heirs-claimants sought compensation from
respondent no. 1 owner/driver and respondent no. 2 insurance company
jointly and severally.
After appreciating the oral and documentary evidence, learned
Tribunal allowed the claim petition and granted compensation to the tune of
Rs. 33,10,000/- to be paid jointly and severally with 6% rate of interest by
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respondent nos. 1 and 2.
Above award is taken exception to by filing instant appeal.
3. Learned counsel for insurance company would point out that
claim itself is false. That, there was no involvement of truck as alleged.
According to him, rather deceased had given dash to a cow and had suffered
injury. That, there was no accident on account of dash by truck. He pointed
out that even in medico legal certificate (MLC) while injured was taken to
the hospital, it was informed in the hospital that, motorcycle gave dash to
the cattle, which came on the road. That, initially accidental death is
registered on 13.12.2013. He pointed out that, subsequently on 18.12.2013
alleged pillion driver Shafique lodged report with police contending that
there was dash by truck. Said Shafique had not stepped into witness box.
That, insurance company in Tribunal had taken specific plea regarding non
involvement of truck and there to be no evidence of any mishap between
motorcycle and truck, but same has not been considered and appreciated.
4. Learned counsel pointed out that even in the spot panchnama,
there is reference of cow but still claimants case has been accepted and
directly finding is recorded regarding involvement of truck, which according
to him, is contrary to the evidence on record. He pointed out that, there is
no evidence to show that either informant Shafique suffered any injury or it
is shown that there was any damage to the vehicle and even spot
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FA-5065-2017.odt
panchnama does not refer to any signs of vehicle meeting dash from rear
side and it further going and giving dash to the cow.
5. He further pointed out that even Tribunal in spite of claimant
setting up a case that deceased earned Rs.8,000/- per month by rendering
work of driver, has held monthly income of deceased Rs.15,000/-. On this
count, he took this Court to the observations of Tribunal in paragraph 21
and thereby finds fault on the part of Tribunal to that extent.
For above reasons, he urges to allow the appeal.
6. In answer to above, learned counsel for respondents claimants
would support findings and conclusion reached by Tribunal. According to
him, though there is delay in lodging first information report, according to
him, only after thorough investigation, charge-sheet has been filed against
owner/driver of the truck against whom FIR was lodged. Thus, according to
him, impugned judgment and award is perfectly legal, needs no
interference. To support his submissions, he relied on judgments of Hon'ble
Apex Court in cases of Geeta Dubey and Others vs. United India Insurance
Co. Ltd. and Ors, AIROnline 2024 SC 867 & Ranjeet and Another vs. Abdul
Kayam Neb and Another, 2025 LJSoft (SC) 598.
7. In the light of above submissions, evidence is put to scrutiny.
Papers show that one Shafique Gani Khan Pathan lodged report with police
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on 18.12.2013 contending that on 06.12.2013 he and Sampat were
proceeding on motorcycle MH-23-AG-2451 and around 08.15 pm, their
motorcycle given dash by a truck from rear side and their motorcycle further
went and gave dash to the cow and they both fell. Sampat who was rider
suffered head injury and he claims that he saw number of the truck as
MH-18-M-8327 and the driver of the truck fled. On above report,
Shivajinagar police station seems to have registered crime bearing no.
39/2013 for offence under sections 279 and 304A of the Indian Penal Code.
8. Charge-sheet carries spot panchnama, which is marked as
exhibit 28 and same seems to be drawn on 13.12.2013. As pointed out, in
the said panchnama, there is reference about witness Jawkar Deepak Sagar
informing that on 06.12.2013, while he and his friend Atul Thorat were
proceeding on Beed-Nagar Road, near Pavansut Mangal Karyalaya suddenly
motorcycle rider and a pillion rider gave dash to cattle and fell down. The
motorcyclist suffered head injury and fell unconscious and other person got
injured and they were taken to Civil Hopsital but Sampat, being serious, was
shifted to Lifeline Hospital but he expired while undergoing treatment.
Therefore, as pointed out by learned counsel for appellant, in
the spot panchnama there is eye witness account of Jawkar Deepak Sagar
who had narrated about seeing motorcycle giving dash to cow and
incumbents of the motorcycle falling. He does not speak about any dash by
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any truck.
9. Apparently, as pointed out, regarding occurrence dated
06.12.2013 so called pillion rider Shafique has reported police about dash
being given by truck on 18.12.2013. As pointed out, he has not stepped into
witness box and there is only evidence of PW1, who is wife of deceased
Sampat. If at all dash was given by truck and if at all Shafique claims to
have noted the number of truck, he ought to have lodged prompt report to
that extent. He is not shown to be admitted anywhere nor he shown to be
incapacitated for any reason to lodge report belatedly. Even, as pointed out,
when injured was taken to the hospital, in MLC information is passed about
motorcycle was giving dash to cattle and there is no reference of
involvement of any truck. Therefore, the above material creates doubt about
involvement of truck.
10. Learned Tribunal has straight away accepted the charge-sheet
and has recorded the finding in paragraph 11 holding that evidence of
witness is not challenged in cross-examination. Exhibit 27 has been straight
away accepted coupled with inquest and post mortem report to hold that
deceased Sampat met with vehicular accident. While recoding affirmative
findings on the point of rash and negligence, there is discussion in
paragraph 12 and learned Tribunal by referring to the judgment of The New
India Assurance Co. vs. Keshar Manikrao Mete and others , 2010 (2) B.C.J.
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417, observed that investigating machinery has seized the vehicle truck
involved in the accident and accused no. 1 has been charge-sheeted and
accused no. 1 had applied for return of property vide application exhibit 34
and the said has been allowed and therefore, such evidence shows
involvement of offending vehicle.
In considered opinion of this Court, such findings are contrary
to the very contents of spot panchnama and MLC papers. Obviously, when
vehicle is seized by police, its owner is bound to apply for its return and
merely because of it, no conclusion can be drawn regarding involvement or
rashness or negligence. Merely because charge-sheet has been filed,
inference cannot be drawn that truck was really involved, more particularly,
when the contents of charge-sheet like spot panchnama reflect another
reason of dash, on a belated FIR, it is unsafe to hold involvement of truck
and further directly award compensation.
11. In the considered opinion of this Court, the approach of learned
Tribunal is erroneous. No doubt, in cases of such nature, there is no rule of
strict evidence and preponderance of probabilities are sufficient to record
findings, however, here, there is documentary evidence showing dash being
given by motorcycle to a cattle and thereafter incumbents on the motorcycle
falling down. Spot panchnama speaks to that extent. There is no distinct
evidence that motorcycle suffered dash from rear side and, therefore, on
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mere belated FIR by so called pillion rider, who refrained from stepping in
the witness box, above findings about involvement of truck, cannot be
allowed to be sustained.
12. Though learned counsel for respondents claimants relied on
above rulings of Hon'ble Apex Court, the facts in those cases are distinct and
cannot be equated with the facts of case in hand. In the first judgment of
Geeta Dubey (supra), Hon'ble Apex Court has held that claimant is only
expected to prove on preponderance of probabilities and not beyond
reasonable doubt. There is no dispute about such settled legal position,
however, here, case is also not proved on preponderance of probabilities
rather facts narrated in the case are shrouded by mischief for various
reasons spelt out in the aforesaid paragraphs. Further in that case, regarding
occurrence dated 18.06.2018 FIR was registered within a short time i.e. on
21.06.2018. Here it is not so. Here, there is FIR but after almost a week. In
the second judgment of Ranjeet (supra), Hon'ble Apex Court has held that
non-examination of eye witness is not fatal, however, here informant had
not suffered any serious injury and was not shown to be admitted anywhere
and, therefore, he was in a position to lodge prompt report regarding being
hit by truck. However, surprisingly he did not promptly lodged report in
spite being pillion rider and eye witness and further did not stepped in the
witness box for the reasons best known to him. For above reasons, the
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rulings relied by learned counsel for respondents does not come to his
rescue.
13. For above reasons, this Court finds it a fit case for interference
on the ground that there is improper and incorrect appreciation of evidence
on record by learned Tribunal. Hence, appellant succeeds. Accordingly, I
proceed to pass following order:
ORDER
(i) First Appeal is allowed.
(ii) Impugned judgment and award dated 07.06.2016 passed
by learned MACT, Beed in MACP No. 93/2014 is quashed
and set aside.
(iii) Pending civil application(s), if any, stands disposed of.
(ABHAY S. WAGHWASE, J.)
Umesh
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