Bombay High Court
Sangita Dattarao Karhale And Ors vs The New India Assurance Company Ltd ... on 21 February, 2025
2025:BHC-AUG:4911
1 fa 1631.24.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.1631 OF 2024
The New India Assurance Company Ltd.
Through it's Branch Manager,
Yeshodeep Building Shivaji Road
Parbhani, Tq. And District Pabrhani.
Through its Divisional Manager/
Authorized Signatory,
Mahesh Auto Compound,
Adalat Road, Aurangabad,
Dist. Aurangabad. APPELLANT
(Original Respondent No.2)
VERSUS
1) Sangita W/o. Dattarao Karhale,
Age : 49 Years, Occu : Household,
R/ at . Digras Karhale, Tq. and District Hingoli.
2) Gajanan S/o. Dattarao Karhale,
Age : 30 Years, Occu : Education,
R/ at. Digras Karhale, Tq. and District Hingoli.
3) Shailesh S/o. Dattarao Karhe,
Age : 27 Years, Occu : Education,
R/at. Digras Karhale, Tq. and District Hingoli.
4) Shardha D/o. Dattarao Karhale,
Age : 23 Years, Occu : Education,
R/at. Digras Karhale, Tq. and District Hingoli.
5) Triveni W/o. Gangaram Karhale,
Age : 65 Years, Occu : Household,
R/o. Digras Karhale, Tq. and District Hingoli.
6) Prasad S/o. Prakash Karhale,
Age : 45 Years, Occu : Business,
R/o. Asola Tarfe Lakh,
Taluka Aundha (Na).
District Hingoli. RESPONDENTS
2 fa 1631.24.odt
(Respdt Nos.01 to 05 are Org. Claimant
Resp. No.6 is Org. Resp. No.1)
...
Advocate for Applicant : Mr. A. G. Choudhari
Advocate for Respondents : Mr. S.V. Suryawanshi
...
WITH
CIVIL APPLICATION NO. 7984 OF 2024 IN FA NO.1631 OF 2024
Sangita W/o. Dattarao Karhale and others
Versus
The New India Assurance Company Ltd.
Through it's Branch Manager,
...
CORAM : S. G. CHAPALGAONKAR, J.
Reserved on : January 22, 2025
Pronounced on : February 21, 2025.
JUDGMENT :
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1. The appellant/insurance company impugns the
judgment and award dated 6.5.2023 passed by the Motor
Accident Claims Tribunal, Hingoli in MACP no.80 of 2017.
2. The Respondents/claimants instituted M.A.C.P.
No.80 of 2017 raising claim for compensation of Rs.55.00 Lakh
under section 166 of the Motor Vehicles Act towards accidental
death of Dattarao Karhale, who died in the accident dated
10.3.2027. The claimants are coming with a case that, while
deceased was proceeding on his motorcycle in the vicinity of
village Santuk Pimpri, offending cruiser jeep bearing
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registration No.MH-38/4387 gave forceful dash to his
motorcycle. Initially, deceased was admitted to the Civil
Hospital, at Hingoli. Then he was referred to Global Hospital,
at Nanded. Thereafter, he took treatment at Dhakane Hospital,
Aurangabad. Lastly, succumbed to the injuries at Government
Hospital, Aurangabad. Thereafter, FIR was lodged on 3.4.2017
against driver of the offending jeep. According to the
claimants, deceased was employed in private service with
Shiva Parvati Poultry Feed Pvt. Ltd., Limbala Makta, Hingoli
and earning Rs.6,500/- p.m. In pursuance to claim notice,
respondent no.1 owner of the vehicle caused his appearance
and denied adverse allegations. Lastly, contended that his
vehicle was insured with respondent no.2, if any liability arises,
it shall be borne by the insurer.
3. Insurer refuted claim alleging false implication of
the insured vehicle, particularly, for the reason that FIR has
been lodged after 23 days of the accident.
4. The claimants in their endeavor to prove the
accident involving cruiser jeep, relied upon the evidence of CW
1-Shailesh Dattarao Karhale Exh.-15, CW-2- Santosh Kailash
Giri Exhibit 23 and CW-3 Balasaheb Ramkishan Bongane
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Exh.24 as well as police papers i.e. FIR exh.33, panchnama
exh.34. Respondent/insurer relied upon certain admissions in
the cross-examination of eye witness, so also certified copies of
oral evidence recorded in SCC No.457 of 2018 pertaining to
subject accident that was registered against driver of the
offending vehicle.
5. Mr. Choudhary, learned advocate appearing for the
appellant/insurance company vehemently submit that, this is a
case of false implication. The incident occurred on 10.3.2017
at about 7 p.m. Deceased was initially admitted to Civil
Hospital, at Hingoli. Thereafter, he was taken to Global
Hospital, Nanded for better treatment. Further, he was treated
at Dunakhe Hospital, Aurangabad and Government Medical
College and Hospital, Aurangabad. However, there is no entry
as regards to accident particularly involving the insured
vehicle. None of the alleged witness gave statement to police
as regards to accident and offending vehicle. There is no
justification for lodging FIR after 23 days. By inviting attention
of this Court to the cross-examination of alleged eye witness,
he would submit that there are serious contradictions in the
narration of incident. Hence, in all probabilities those are got
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up witness. Mr. Choudhary would invite attention of this Court
to the statement of eye witness recorded in criminal
prosecution against the driver, wherein the witnesses could not
disclose involvement of the insured vehicle.
6. Per contra, Mr. Suryawanshi, learned advocate
appearing for the claimants supports the judgment and award
passed by the Tribunal. According to him, mere delay in
lodging the FIR would not be a good ground to reject the
claim. The informant and other family members of deceased
were busy in providing medical treatment to the victim, who
was shifted to higher centers for better treatment and after
performing last rites, FIR has been lodged. He submits that
two eye witnesses of the accident have been examined before
the Tribunal. Their evidence is sufficient to hold involvement
of the insured vehicle.
7. Having considered the submissions advanced, core
issue that requires consideration in this appeal is as to whether
the claimants have proved involvement of cruiser jeep bearing
registration No.MH-38/4387 in subject accident.
6 fa 1631.24.odt
8. First objection raised on behalf of the
appellant/insurer that there is inordinate delay in lodging the
FIR. Question is whether there is plausible explanation for
such delay. It is not disputed that immediately after accident,
deceased was admitted to Civil Hospital at Hingoli and looking
to serious condition, he was taken to Global Hospital, Nanded.
Thereafter, he was again taken to Dunakhe Hospital, at
Aurangabad and lastly succumbed to the injuries at
Government Medical College and Hospital, Aurangabad. His
last rites are performed on 26.3.2017 and after 8 days of the
last rites, FIR has been lodged. It is obvious that, in case of
accident of family member, priority would be to provide
medical treatment. Normally, when patient is admitted to Civil
Hospital, it is for them to inform Police Authorities regrading
the accident. Family members cannot be blamed for such
delay. Thereafter, further medical assistance was provided at
distant places i.e. at Nanded and Aurangabad. In this
background, delay in lodging the FIR itself cannot be
considered as good ground to discard entire case of the
claimants.
7 fa 1631.24.odt
9. Mr. Choudhary, submits that evidence of eye
witness is absolutely unreliable. They are got up witnesses.
Perusal of evidence of CW 2 Santosh shows that he runs
sugarcane juice shop nearby the place of accident and claims
himself to be an eye witness. However, during his cross-
examination he admitted that he cannot read and write. There
is no provision of electric light at the spot of accident. He did
not disclose offending vehicle number to any one till police
approached him. He cannot tell as to whether it was head on
collision between two vehicles as he was at the distance. All
these admissions coupled with fact that he turned hostile
before the criminal court makes his statement unreliable.
10. Second witness of the claimant is Balasaheb
Bongane CW-3. He states that he was proceeding on his
motorcycle and witnessed the offending jeep dashed against
motor cycle of the deceased Dattarao. He states that, he noted
jeep number and informed claimant no.3-Shailesh regarding
the incident. In cross-examination, he admitted that he is
relative of the claimants. He states that he noted number of
offending vehicle after getting a pen from the owner of sugar
cane juice shop. He states that he did not felt necessary to
8 fa 1631.24.odt
accompany deceased to the Hospital or he never informed
police chowki or doctor regarding the vehicle number or
incident. He never visited the police or gave his statement to
the police. The Certified copy of his statement recorded in
S.C.C. No.457 of 2018 is also placed on record of the Tribunal
at Exhibit 15, wherein he states that he came to know about
vehicle number from the mob gathered at the spot of accident.
If the aforesaid evidence is taken into account, it is difficult to
believe that accident occurred in presence of CW-3.
Pertinently, CW-1 admits in his cross-examination that vehicle
owner bears surname Karhale as claimants and he is resident
of the village which is at a distance of 30 kilometers from
village of the claimants. He admits that he had received
information as to owner of the vehicle, but never disclosed it to
any one prior to filing of the complaint.
11. Pertinently, CW-3 Balasaheb is relative of the
claimants. He claims himself to be the eye witness, but never
felt it necessary to inform about the accident to police. CW-2
Santosh in his deposition states that CW-3 Balasaheb informed
claimant Shailesh as to the accident, while they were travelling
to hospital with deceased, but CW-3 Balasaheb state that he
9 fa 1631.24.odt
did not accompany deceased in auto-rickshaw when he was
taken to the hospital. He says that, he is not aware about the
persons who accompanied the deceased in the auto-rickshaw
while shifting him to the hospital.
12. The referral card of District Hospital, Hingoli is
placed at Exhibit-42. It simply records the history as road
traffic accident and head injury. If that was so, one does not
know how police authorities were not aware about the
incident.
13. Perusal of the spot panchnama exhibit 34 shows
that it has been recorded on 5.4.2017 and there were no traces
of the accident. The A.D. Report forwarded by Begampura
police station, Aurangabad do not disclose any information
that would support claimants so as to prove involvement of
injured vehicle in the accident.
14. It is true that delay in lodging FIR itself is not a
ground to dismiss claim petition and even claimants need not
prove factum of accident beyond doubt. The Courts are also
under obligation to see that delay in lodging the FIR shall not
defeat genuine claims. The evidence has to be assessed on
10 fa 1631.24.odt
preponderance of probability. In the present case, on evolution
of entire evidence lead by the claimants, delay in lodging FIR
becomes relevant, particularly, when evidence of so-called eye
witness has been shattered during cross-examination. The
attending circumstances surfaced on record goes to show that
case regarding involvement of the insured vehicle has been
developed after death of the deceased with the aid of witness
Balasaheb, who is relative of claimants. The second witness
Santosh Giri clearly appears to be the got up witness.
15. It is true that owner of the vehicle has indirectly
admitted the accident. However, fact remains that he did not
report the accident to anyone although he is under statutory
obligation to do so. He hails from the nearby village and bears
the same surname as the claimants. Hence, possibility of false
implication of the vehicle owned by relatives or persons from
nearby village cannot be ruled out with intention to covert
orphan accident in a motor vehicular accident, which is
frequent practice observed in the recent past.
16. Although, Court would not insist upon the
claimants to bring conclusive evidence as to involvement of the
11 fa 1631.24.odt
vehicle, primary duty of the claimants to establish their case on
the basis of preponderance of probability cannot be discharged.
The gamut of the aforesaid discussion leads this Court to hold
that the Tribunal has erroneously accepted case of the
claimants on superficial material without judiciously
appreciating the evidence on record.
17. In that view of the matter, the Award passed by
the Tribunal is liable to be quashed and set aside by allowing
the appeal. Resultantly, following order is passed.
ORDER
i. First Appeal is allowed.
ii. The impugned judgment and award dated
6.5.2023 passed by the Motor Accident Claims
Tribunal, Hingoli in MACP No.80 of 2017 is
hereby quashed and set aside.
iii. Pending civil application, if any, also stands
disposed of.
iv. Amount, if any, deposited be refunded to the
Appellant.
( S. G. CHAPALGAONKAR )
Judge.
...
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