Bombay High Court
Kavita W/O Sunil Datir And Ors vs Bhgwan Yashwant Kobarne And Anr on 17 January, 2025
2025:BHC-AUG:1328
1 FA 2132.24+ca.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 2132 OF 2024
Divisional Manager,
The New India Assurance Company Ltd.
3rd floor, Rushiraj Residency ,
Near Vidya Vikas Circle ,
Gangapur Road, Nasik -422005
Through Senior Divisional Manager
Ajay Engineering Compound, Near Kranti Chowk,
Mahesh Compound, Adalat Road, Aurangabad
..Appellant...
(Orig. Respdt.No.02)
Versus
1) Kavita Sunil Datir
Age : 34 Years, Occu. Household
2) Ashvini Sunil Datir,
Age : 17 Years, Occu. Education
3) Akshay Sunil Datir
Age : 16 Years, Occu. Education.
4) Kartik Sunil Datir
Age : 14 Years, Occu. Education,
(Respondent no. 2 to 4 through their natural
Guardian Mother i.e. Respondent no.1)
5) Sitaram Babasaheb Datir
Age : 58 Years, Occu. Agriculture
6) Mandabai Sitaram Datir
Age- 55 Yrs. Occu: Household
Respondent no.1 to 6 Resident of
Village Pimpri Lauki Tq. Sangamner
Dist. Ahemadnagar
2 FA 2132.24+ca.odt
7) Bhagwan Yashwant Kobarne,
Age- 45 yrs. Occu: Tempo Business,
Address : Lohgaon- Pravranagar, Tq. Rahata
Dist. Ahemadnagar
...Respondents...
(Respdt. Nos.1 to 6 - Orig. Claimants
Respdt. No.7 - Orig. Respdt.No.1 / Driver
and owner ).
...
Advocate for Appellant : Ms. A. V. Rotte
Advocate for Respondents 1-6 : Mr. R.B. Dhakane
.....
WITH
CIVIL APPLICATION NO. 8621 OF 2024 IN FA No.2132 of 2024
Kavita W/o Sunil Datir And Ors. Applicants.
Versus
Bhgwan Yashwant Kobarne And Anr Respondents
...
Advocate for Applicants : Mr. R.B. Dhakane
Advocate for Respondent no.2 : Ms. A V. Rotte
.....
CORAM : S. G. CHAPALGAONKAR, J.
Reserved on : 8th January, 2025.
Pronounced on : 17th January, 2025.
JUDGMENT :
-
1. The appellant/insurer takes exception to the
judgment and award dated 25.4.2023 passed by the Member,
Motor Accident Claims Tribunal, Sangamner, District
Ahmednagar in MACP No.28 of 2019.
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2. Admit. Heard finally with consent of the parties.
3. Respondent nos.1 to 6/original claimants filed
M.A.C.P. no.28 of 2019 before the Motor Accident Claims
Tribunal, at Sangamner raising claim of Rs.10.00 Lakhs against
the appellant/respondents towards accidental death of Sunil
Sitaram Datir, who died in motor vehicular accident dated
28.11.2017. According to the claimants, while deceased was
riding motorcycle bearing registration no.MH-17/M-2767, Tata
Magic bearing registration No.MH-17/AZ-6682 gave dash to
the motorcycle. Consequently, motorcycle skidded causing fatal
injuries to the deceased. Deceased was engaged in agriculture
and milk business, so also used to work as labour for
harvesting the sugarcane and maintaining his family. Accident
occurred due to rash and negligent driving on the part of Tata
Magic. All claimants were depending on income of the
deceased. Hence, they are entitled for the compensation as
claimed.
4. Respondent no.1 owner of the vehicle accepted
factum of accident, but denied assertions regarding negligence
on the part of the Tempo driver. Respondent no.2-Insurer
pleaded that claimants have put up a piled up story of
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accident. Vehicle tempo has been falsely involved in the
accident. Insured Tempo was not at all involved in the
accident. False story has been hatched and brought on record
through belated FIR registered on 26.1.2018. Rest of the
averments regarding occupation, income and dependency were
also denied. However, the Tribunal, after recording evidence
of the parties allowed claim directing respondent nos.1 and 2
to pay compensation of Rs.14,88,500/- alongwith interest @
8% p.a. vide impugned judgment and award dated 25.4.2023.
5. The Insurer impugns award of the Tribunal in this
appeal.
6. Smt. Rote, learned advocate appearing for the
appellant/insurance company submitted that it is a case of
false involvement of insured vehicle in the subject accident
with intention to grab the compensation amount from insurer.
She would submit that the accident occurred on 28.11.2017 at
about 10.45 p.m. FIR has been lodged by claimant no.5 -
father of deceased on 26.1.2018 i.e. after 60 days of the
accident. She would submit that source of information
regarding involvement of insured vehicle in alleged accident is
claimant no.5 and his relative Mr. Bhausaheb Lavre. They
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claims that they were following offending vehicle at the time of
accident and actually witnessed it giving dash to motorcycle of
the deceased. She would urge that, if claimant no.5 and his
companion were witness of the accident, FIR ought to have
been immediately lodged. She would further invite attention
of this Court to the accident report dated 29.11.2017 made by
Ashok Nagre/Police Patil of village Shiblapur contending that
he saw a motorcycle laying entangled to the roadside Babool
tree. Body of deceased Sunil was laying at the spot. He dialed
from phone of the deceased and came to know about his
identity. Then his family members arrived at the spot.
7. On the basis of aforesaid report, she would submit
that, if claimant no.5 had witnessed the accident, it could have
been reported at least to the Police Patil with particulars as to
involvement of the offending tempo. There is no explanation
as to why FIR was delayed by about two months. She would
further point out that claimant no.5 did not enter in the
witness box. PW no.2-Bhausaheb Lavre alleged companion of
claimant no.5 examined before the Tribunal, wherein he
admitted that he did not report incident to the police.
Although, he was aware about the accident, he never posed
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himself as eye witness. Chit where he had noted number of
offending vehicle was not seen by the police. He admitted that
he is relative of the claimants.
8. Close scrutiny of the aforesaid evidence clearly
depicts that deceased skidded from his motorcycle and dashed
to the roadside babool trees and suffered fatal injuries. Report
of police patil dated 29.11.2017 which is filed alongwith list of
documents exhibit-33 throws light on the aforesaid facts. It
shows that marks of skidding of the motorcycle were visible.
Apparently, family members of deceased gathered on the spot,
but report of the accident involving insured tempo was never
made. Statement of Bhausaheb Lavre appears to have been
recorded on 26.1.2017 so also FIR has been lodged by claimant
no.3 on the same day. No explanation is given for delay in
lodging the FIR.
9. Minute reading of the FIR clearly depicts that a
made up story has been put into service to bring home
involvement of the insured vehicle. Except claimant no.5 and
PW 2 Bhausaheb Lavre, no other person has knowledge about
accident involving insured vehicle. It is stipulated in the FIR
that since deceased had not returned home, his
7 FA 2132.24+ca.odt
father/claimant no.5 alongwith Bhausaheb Lavre were
searching him and during their search, they saw insured tempo
giving dash to the motorcycle. In that process, Bhausaheb
Lavre alleged to have recorded the number, but they did not
find it necessary to see who was the motorcycle rider dashed
by the tempo. Even after getting knowledge of accidental
death of Sunil at the very same spot of the accident as noted by
them in last night, no report was lodged as regards to
involvement of tempo for sixty days. The story appears to be
improbable and hatched only for the purpose of converting
orphan accident to the accident involving insured vehicle.
10. Except FIR and evidence of so-called eye witness,
Bhausaheb Lavre there is nothing on record to prove the
accident.
11. In normal case, this Court would not have
discarded case of the claimants only on the ground of delay in
filing the FIR, in a factual scenario surfaced on record, delay in
lodging the FIR is relevant. It is primary burden of the
claimants to prove accident involving insured vehicle to raise
claim for compensation against owner and insurer of the
offending vehicle. It is trite that, the claimants have to prove
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the case based on preponderance of probabilities. Strict proof
of evidence may not be necessary. However, glaring facts
surfaced in the present case pinpoints false implication of the
insured vehicle on the basis of a cooked up story. In all
probabilities, deceased died due to skidding of the motorcycle.
There is no foundation of pleadings and evidence to accept the
case of claimants as regards to the accident involving insured
vehicle. The Tribunal ignored aforesaid material aspects and
merely based on the evidence of witness Bhausaheb Lavre,
accepted claimants' case alongwith the fact of filing of charge-
sheet, which is inconsequential. In facts, so-called admission
of the respondent no.1 as regards to involvement of his vehicle
appears collusive. This Court came across large number of
cases, wherein on the basis of belated FIR's or police
statements insured vehicles are sought to be implicated in the
orphan accidents. In this scenario, cryptic findings recorded by
the Tribunal cannot be sustained. Consequently, first appeal
deserves to be allowed. In the result, following order is
passed.
ORDER
i. First appeal is hereby allowed.
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ii. The impugned judgment and award dated
dated 25.4.2023 passed by the Motor
accident Claims Tribunal, Sangamner,
District Ahmednagar in M.A.C.P. No.28 of
2019 is hereby quashed and set aside.
iii. The amount of compensation, if any,
deposited by the appellant-insurance
company be refunded after 90 (Ninety)
days.
iv. First appeal stands disposed off. Pending
civil application, if any, also stands disposed
off.
( S. G. CHAPALGAONKAR )
Judge.
...
aaa/-
