Bombay High Court
Reliance General Insurance Co Ltd vs Sonal Sitaram Waykar on 20 February, 2025
2025:BHC-AUG:5094
1 fa2216.24 judgment
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 2216 OF 2024
1. Reliance General Insurance Company,
ABC Complex C-9 & C-10,
Radhamohan Colony, Adalat Road,
Chhatrapati Sambhajinagar,
Maharashtra - 431001.
2. Tejas Narayan Pawar,
Age; Major, Occ; Business,
R/o; Balajinagar, Dahiwadi,
Tal. Maan, District; Satara ...APPELLANTS
(Orig. Respondents)
VERSUS
Sonal Sitaram Waykar,
Age : 32 years, Occ. None,
R/o; Hivare Khurd,
Behind Z.P. School,
Ozar- Otur Road,
Tal. Junnar, Dist. Pune.
Currently residing in Central
Bank Colony, Sutgirni Road,
Shrirampur 413709
Tq. Shrirampur, Dist. Ahmednagar. ...RESPONDENT
(Original Claimant)
................
Mr. A.S. Usmanpurkar : learned Advocate for appellants
Mr. S.S. Kote : learned Advocate for respondent
...............
WITH
CIVIL APPLICATION NO. 9072 OF 2024
IN
FIRST APPEAL NO. 2216 OF 2024
Sonal Sitaram Waykar,
Age : 32 years, Occ. None,
R/o; Hivare Khurd, Behind
Z.P. School, Ozar- Otur Road,
2 fa2216.24 judgment
Tal. Junnar, Dist. Pune.
Currently residing in
Central Bank Colony,
Sutgirni Road, Shrirampur 413709
Tq. Shrirampur, Dist. Ahmednagar. ...APPLICANT
(Original Claimant)
VERSUS
1. Reliance General Insurance Company,
ABC Complex C-9 & C-10,
Radhamohan Colony, Adalat Road,
Chhatrapati Sambhajinagar,
Maharashtra - 431001.
2. Tejas Narayan Pawar,
Age; Major, Occ; Business,
R/o; Balajinagar, Dahiwadi,
Tal. Maan, District; Satara ...RESPONDENTS
(Orig. Respondents)
CORAM : S. G. CHAPALGAONKAR, J.
Date of Reservation : 13.02.2025
Date of Pronouncement : 20.02.2025
JUDGMENT :
-
1. Appellants (Original Respondents) filed this appeal impugning
judgment and award dated 27.11.2023 passed by Motor Accident Claims
Tribunal Shrirampur, District Ahmednagar (hereinafter referred to as
"MACT" for brevity), in MACP No. 122 of 2021.
2. Hereinafter, the parties are referred to as per their original
status in suit.
3. The Claimant suffered injuries in an accident dated
25.01.2021. She filed Motor Accident Claims Petition No. 122 of 2021
3 fa2216.24 judgment
seeking compensation against owner and insurer of Tata Dumpar bearing
registration No. MH-08-W-8403. It is contention of Claimant that while
she was proceeding as pillion rider on motor cycle with her relative
Devidas, Tata dumper gave dash to motorcycle from rear side. Eventually
she suffered injuries to her left leg. Initially, she was admitted in Samarth
hospital and thereafter, she was treated at Sancheti Hospital, Pune from
25.01.2021 to 30.01.2021. Her left leg has been amputated below knee.
She lost her earning capacity. She holds degree of Bachelor Science
(Agriculture) but she was in business of tailoring, marketing of cloths and
beauty items. According to her, she was earning Rs. 25,000/- p.m. at the
time of accident.
4. Appellant Insurance Company filed written statement,
contending that insured dumper has been falsely implicated in accident,
in alternative, contends that motorcycle rider was responsible for accident.
The contentions regarding permanent disablement and consequential loss
of earning capacity to Claimant were denied. Learned tribunal framed
issues, recorded oral evidence of parties and finally passed an award for
compensation of Rs. 33,69,190/- directing respondents to pay the same
with interest @ 6% p.a.
5. Mr. Usmanpurkar, learned Advocate appearing for
appellant/Insurance Company vehemently submitted that although
accident occurred on 25.01.2021, First Information Report (for short 'FIR')
has been lodged on 17.02.2021 depicting involvement of insured dumper.
There is no explanation for inordinate delay in lodging FIR. Claimant could
not record evidence of eye witnesses to accident. He would invite attention
of this Court to cross-examination of Claimant, particularly her admission
that she could not note registration number of offending vehicle.
According to Mr. Usmanpurkar, learned Tribunal failed to take note of
cross-examination of Claimant as well as defence putforth by Insurance
Company and erroneously passed award. He would further submit that
4 fa2216.24 judgment
except Claimant herself, none stepped into witness box to prove accident.
Tribunal erroneously accepted Claimant's case as to permanent
disablement and loss of earning capacity. Her income is excessively
considered eventually, exorbitant award has been passed.
6. Per-contra, Mr. Kote, learned Advocate appearing for
Claimant supports the judgment and award under appeal.
7. Having considered submissions advanced, first issue that
arises for consideration is, as to whether Claimant proves accident
involving insured dumper. In support of her claim, Claimant stepped into
witness box. During her evidence, first information report, Crime details
form - spot panchanama, injury certificate, disability certificate, income
tax returns, medical bills have been exhibited. True, that the FIR has
been lodged after 23 days of accident. Contents of FIR show that it has
been lodged by rider of motorcycle i.e. Devidas Jadhav, who was also
injured in said accident and hospitalized. After discharge from hospital he
lodged FIR. Apparently, contents of FIR itself are self-explanatory and
narrates plausible reason for delay. Later on, spot panchanama appears to
have been recorded. Discharge summary of Sancheti Hospital shows that
Claimant was admitted in Hospital on 25.01.2021 and "It was a case of
road traffic accident between four wheeler and two wheeler. The patient
was riding on two wheeler".
8. Claimant placed on record copy of charge-sheet Exh. 49. It
shows that dumper driver has been charge-sheeted for offence of rash and
negligent driving. Charge-sheet contains statement of an eye witness
namely Mukund Tikekar, who narrates manner of accident and
particulars of offending vehicle with its registration number. It is true, that
none of eye witnesses entered into witness box but fact remains that
Claimant herself is an eye witness of accident and she deposed about
5 fa2216.24 judgment
involvement of dumper. Perusal of her cross-examination shows it was not
suggested to her that insured vehicle has been falsely implicated. She was
not suggested that owner of vehicle acted in collusion with her to falsely
implicate vehicle. Mere suggestion put to her is that she is giving false
evidence. At this stage, it would be apposite to refer to observations of
Hon'ble Supreme Court in Ravi Vs. Badrinarayan and Others - reported in
(2011) 4 SCC 693, which reads thus :
"17. It is well-settled that delay in lodging the FIR cannot be a
ground to doubt the claimant's case. Knowing the Indian
conditions as they are, we cannot expect a common man to first
rush to the Police Station immediately after an accident. Human
nature and family responsibilities occupy the mind of kith and
kin to such an extent that they give more importance to get the
victim treated rather than to rush to the Police Station. Under
such circumstances, they are not expected to act mechanically
with promptitude in lodging the FIR with the Police. Delay in
lodging the FIR thus, cannot be the ground to deny justice to the
victim.
18. In cases of delay, the courts are required to examine the
evidence with a closer scrutiny and in doing so the contents of the
FIR should also be scrutinized more carefully. If court finds that
there is no indication of fabrication or it has not been concocted
or engineered to implicate innocent persons then, even if there is
a delay in lodging the FIR, the claim case cannot be dismissed
merely on that ground. The purpose of lodging the FIR in such
type of cases is primarily to intimate the police to initiate
investigation of criminal offences.
19. Lodging of FIR certainly proves factum of accident so
that the victim is able to lodge a case for compensation but delay
in doing so cannot be the main ground for rejecting the claim
petition. In other words, although lodging of FIR is vital in
deciding motor accident claim cases, delay in lodging the same
should not be treated as fatal for such proceedings, if claimant
has been able to demonstrate satisfactory and cogent reasons for
it. There could be variety of reasons in genuine cases for delayed
lodgment of FIR. Unless kith and kin of the victim are able to
regain a certain level of tranquility of mind and are composed to
lodge it, even if, there is delay, the same deserves to be condoned.
In such circumstances, the authenticity of the FIR assumes much
more significance than delay in lodging thereof supported by
cogent reasons."
6 fa2216.24 judgment
9. Similarly in yet another judgment in Sunita and Others Vs.
Rajasthan State Road Transport Corporation and Others - reported in
(2020) 13 SCC 486 following observations are made :
"22. It is thus well settled that in motor accident claim cases,
once the foundational fact, namely, the actual occurrence of the
accident, has been established, then the 'Tribunal's role would be
to calculate the quantum of just compensation if the accident had
taken place by reason of negligence of the driver of a motor vehicle
and, while doing so, the Tribunal would not be strictly bound by
the pleadings of the parties. Notably, while deciding cases arising
out of motor vehicle accidents, the standard of proof to be borne in
mind must be of preponderance of probability and not the strict
standard of proof beyond all reasonable doubt which is followed in
criminal cases."
10. Looking to aforesaid expositions of law, it is clear that
Claimant needs to bring on record foundational facts as regards
occurrence of accident. Once Claimant discharge onus, it would be for the
respondents to rebut the same. In present case, Claimant, who herself is
an eye witness entered into witness box. Her cross-examination depicts
that defence of false implication of vehicle or collusive claim is not put to
her. Claimant has placed on record FIR, although delayed, but contains
plausible explanation for delay. A complete copy of charge-sheet is
tendered, which depicts that on full flagged investigation driver of dumper
has been charge-sheeted. Charge-sheet contains statements of two eye
witnesses. In that view of the matter, if insurance Company was to bring
home its defence of false implication, they could have brought on record
some positive evidence as to collusion between Claimant and owner of
vehicle. The driver of insured vehicle could have been examined, or the
investigating officer could have been called in witness box, however,
except denial or plea of false implication of insured vehicle in written
statement, no steps are taken by insurer. In that view of the matter, there
is no substance in the contention of insurer that insured vehicle is falsely
implicated.
7 fa2216.24 judgment
11. So far as, assessment of compensation is concerned, Claimant
has suffered amputation to her left leg below knee. Sancheti Hospital,
where Claimant has been treated has issued certificate in Form (B),
certifying that she suffered 50% of permanent disability. Claimant has
also placed on record copy of Discharge Card giving details of medical
treatment advanced to her. Claimant has placed on record income tax
return Exhibit 31 for assessment year 2020-21, that has been uploaded
on 30.12.2020, wherein, her total income is shown as Rs. 2,34,120/- from
business. It is supported by income and expenditure account. Income tax
return for the assessment year 2019-20 shows that her gross income is
Rs. 3,02,476/-. All aforesaid documents are admitted in evidence and
given exhibits without objection of respondents. Learned Tribunal has
accordingly assessed her income @ 20,000/- p.m. and loss of earning
commensurate to permanent disablement @ 50%. Tribunal rightly added
40% towards her future prospectus so also awarded compensation
towards medical expenses, pains, sufferings, cost of artificial limb and
assessed total compensation to Rs. 33,69,190/-, which appears to be just
and proper.
12. In result, appeal sans merit, hence dismissed.
13. In view of dismissal of appeal, amount deposited by Original
Respondent/Insurance Company be disbursed to Claimant as per
directions stipulated in award passed by Tribunal.
14. In view of dismissal of First Appeal, the Civil Application
stands allowed and is disposed of.
( S. G. CHAPALGAONKAR )
JUDGE
mahajansb/
