Bombay High Court

Legal Manager, Bajaj Allianz General ... vs Dilip Narayan Kagne And Others on 31 July, 2025

2025:BHC-AUG:20141
                                                1                      FA.999-24 & ors.odt


                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     BENCH AT AURANGABAD

                                    FIRST APPEAL NO. 999 OF 2024
                                                WITH
                                 CIVIL APPLICATION NO.3383 OF 2024
                                           IN FA/999/2024
                     Legal Manager,
                     Bajaj Allianz General Insurance Co. Ltd.
                     Shri Ganesh Plaza, 2nd floor, Near Hotel Sandip,
                     Near Mahamarg Bus Stand, Nashik.
                     Through its Authorized Signatory / Branch Manager,
                     Plot No. D-5/1, ABC East, 3rd Floor,
                     Besides Prozone Mall, Chikhalthana MIDC,
                     Aurangabad, Tq. & Dist: Aurangabad,
                     Pin Code : 431 210.                        ...     Appellant.
                             VERSUS
                     1.    Mayur Prakash Chindarkar,
                           Age : 36 Years, Occu. Service,
                           R/o. Central Prison, Thane, L-262,
                           Ashtavinayak Nagar, MHADA Society,
                           Dhule- Solapur area, Solapur, At Solapur,
                           Tq. & Dist. Solapur - 413 006.

                     2.    Suresh Motilal Choudhary,
                           Age : 50 Years, Occu. Driver & Owner,
                           R/o. Songir, Tq. & Dist. Dhule.     ...         Respondents.

                                                    WITH
                                  FIRST APPEAL NO. 1008 OF 2024
                            WITH CIVIL APPLICATION NO.3404 OF 2024 IN
                                        FA/1008/2024 WITH
                            WITH CIVIL APPLICATION NO. 8984 OF 2024 IN
                                           FA/1008/2024
                     Legal Manager,
                     Bajaj Allianz General Insurance Co. Ltd.
                     Shri Ganesh Plaza, 2nd Floor, Near Hotel Sandip,
                     Near Mahamarg Bus Stand, Nashik.
                     Through its Authorized Signatory / Branch Manager,
                     Plot No. D-5/1, ABC East, 3rd Floor,
                     Besides Prozone Mall, Chikhalthana MIDC,
                     Aurangabad, Tq. & Dist: Aurangabad,
                     Pin Code: 431 210.                         ...     Appellant.
                             2                   FA.999-24 & ors.odt



        VERSUS
1.    Dilip Narayan Kagne,
      Age : 63 Years, Occu. Service,

2.    Hirabai Dilip Kagne,
      Age : 55 Years, Occu. Household,

      Both R/o. Plot No. 35, Rashmiji Nagar,
      Chudane Road, Dondaicha,
      Tal. Shindkheda, Dist. Dhule.

3.    Suresh Motilal Choudhary,
      Age : 50 Years, Occu. Driver & Owner,
      R/o. Songir, Tq. & Dist. Dhule.     ...       Respondents.

                              ...
 Advocate for Appellants in both FA : Mr. Deshmukh Mohit R.
Advocate for Respondents in both FA : Mr. Amol S. Sawant h/f
                      Mr. A. D. Pawar.
                              ...

                         CORAM :       SHAILESH P. BRAHME, J.

                         RESERVED ON   : 16.07.2025
                         PRONOUNCED ON : 31.07.2025.

JUDGMENT :

1. Heard both the sides finally.

2. The insurance company has preferred these two appeals

challenging distinct judgments and awards passed by Motor

Accident Claims Tribunal, Dhule on 05.12.2023. M.A.C.P.

No.409 of 2013 was filed by parents of the deceased Rohit who

met with an accident and succumbed to the injuries. The

Tribunal awarded compensation of Rs.32,39,402/- with

interest. M.A.C.P. No.441 of 2014 was filed by injured Mayur 3 FA.999-24 & ors.odt

who was pillion rider. The Tribunal awarded compensation Rs.

25,000/-.

3. Both the claim petitions are arising out of the self same

accident. The joint and several liabilities was imposed on the

appellant/insurance company. Offence was registered and the

police papers were placed on record before the Tribunal.

Hence, I propose to decide both the appeals by common

judgment and order. I propose to refer to the parties in First

Appeal No.1008 of 2024 involving a death claim.

4. Deceased Rohit and injured Mayur were serving as Police

Guard in Central Prison, Kalva, Thane. They were riding on a

motorcycle bearing MH.19-AS-7213. Their two friends who

were following them in a separate vehicle were also working in

the same department as police guards. These four persons had

been to Nandra to attend wedding ceremony of their friend

Swapnil. After attending marriage ceremony on 16.04.2013 at

Akhatwade, Taluka Chopada, these four persons were

returning to Nandra. The motorcycle of the deceased was

given dash from behind by goods vehicle. The deceased Rohit

and injured Mayur fell in the canal and sustained serious

injuries. After occurrence of the accident, their two

companions arrived at the spot who were following them and 4 FA.999-24 & ors.odt

learnt about the accident. The injured were shifted to the

hospital. The goods vehicle which gave dash fled from the

spot.

5. First Information Report was registered on 19.04.2013

at the instance of Walmik Bapu Patil, who was one of the

companions. In pursuance of that Crime No.89 of 2013 was

registered with Dharangaon Police Station against offending

unknown vehicle. It is stated in the First Information Report

and the statements recorded by the police that due to rash and

negligent driving of respondent No.3, accident occurred, in

which, Rohit lost his life and Mayur sustained serious injuries.

Thereafter, during the course of investigation, the goods

vehicle was traced who was found to be owned and driven by

respondent No.3. It was insured with the appellant. A

statement of the injured Mayur was recorded on 21.04.2013

disclosing that offending vehicle was MH.18-AA-2679.

6. The papers of the investigation are placed on record and

exhibited as FIR Exh.23, spot panchnama Exh.24, insurance

policy cover note Exh.29, inquest panchnama Exh.30, post

mortem report Exh.31, statement of the witness Mayur Exh.32,

salary certificate of deceased Exh.49 which are relevant. In

death claim, four witnesses were examined including father of 5 FA.999-24 & ors.odt

the deceased, injured Mayur, Investigating Officer PSI Mr. Kale

and Mr. Gonde from the department. Whereas in the injury

claim, three witnesses were examined including injured Mayur

(P.W.1), PSI Mr. Kale (P.W.2), Medical Practitioner Dr. Rajkumar

Indrasen Suryawanshi (P.W.3).

7. The defence of the appellant was that the offending

vehicle was planted. Considering delay caused in First

Information Report and the police papers, it is stated to be

collusive claim. Identification of the offending vehicle is

seriously disputed. Both the claim petitions filed under Section

166 of the Motor Vehicles Act (hereinafter referred to as "Act"

for sake of brevity and convenience) are stated to be not

maintainable because it was a matter of hit and run.

Appellant/insurance company is stated to have no liability to

pay the compensation.

8. After considering the pleadings and the material on

record, it is held by the Tribunal that respondent No.2/driver

of the goods vehicle was liable for rash and negligent driving

which gave dash to the motorcycle resulting into death of Rohit

and injuries to Mayur. The overt act of respondent No.3 is held

to be proved from the police papers and specially the evidence

of injured Mayur who was pillion rider. The income of the 6 FA.999-24 & ors.odt

deceased and injured is held to be proved by oral evidence as

well as salary slips. The medical papers of the injured disclosed

the nature of injuries and the disabilities. Ultimately, Tribunal

awarded compensation of Rs.32,39,402/- in death claim and

awarded compensation of Rs.25,000/- in injury claim.

9. Learned counsel Mr. Mohit Deshmukh appearing for the

appellant/insurance company would submit that the claim

petition is not maintainable under Section 166 of the Act. It

was a case of hit and run and recourse to Sections 161 and 163

should have been taken. It is further submitted that the claim

is collusive and fraudulent because the First Information

Report pertains to unidentified offending vehicle. There is

suspicion regarding involvement of vehicle which is insured

with the appellant. There is every reason to infer that its a

planted vehicle. He would further submit that the evidence of

Mayur is not reliable. It is impossible that when he was pillion

rider and his motorcycle was dragged in the canal, he could

have seen number of the offending vehicles. It is further

submitted that the theory of the claimants regarding the

vehicle and the manner in which the accident occurred is

suspicious. The entire case of the claimants is unreliable and

Tribunal committed patent illegality in granting compensation.

7 FA.999-24 & ors.odt

He would further submit that the respondents/claimants

miserably failed to bring on record the convincing evidence

regarding the involvement of vehicle and the manner in which

accident took place. It is submitted that the nature of the

injuries on Mayur is incomplete with theory of accident.

10. Per contra, learned counsel Mr. Amol Sawant appearing

for the respondents/claimants supports impugned judgments

and orders. He would submit that one of the claimants Mayur

is a injured person and he has given probable account of the

accident. It is further submitted that the respondents/claimants

discharged the burden and when onus shifted upon the

insurance company, no evidence was produced. It is further

contended that the minor discrepancies which are tried to be

brought on record by the appellant regarding the size of the

vehicle, the manner in which the accident occurred are

immaterial and inconsequential. It is submitted that

depositions of P.W.1 and P.W.2 corroborate the claim and rightly

accepted by the Tribunal. It is further submitted that the theory

of the insurance company that the vehicle was planted is

misplaced because there is oral evidence, police papers and on

preponderance of probabilities, the accident and the liabilities

have been established.

8 FA.999-24 & ors.odt

11. It is further submitted that the delay in lodging FIR has

also been properly explained. The minor defects in the

investigation would not vitiate the entitlement of the appellant.

It is further pointed out that appellant did not make any

complaint regarding any fraud or planting of the offending

vehicle. Neither any summons was issued to the driver/owner

of the offending vehicle to lead oral evidence in the Court.

Lastly, it is submitted that in case of death claim, father of the

deceased also died and mother is only claimant. Her condition

is very precarious.

12. I have considered rival submissions of the parties. In

both the claim petitions, appellant did not lead any oral

evidence. The appellant did not prefer any complaint to the

police when it entertained suspicion about the fraud or

collusion between the claimants and respondent No.3/owner

of the vehicle. The theory of planting of the vehicle is tried to

be made out from the police papers and the depositions of the

witnesses examined by the claimants.

13. The accident took place on 16.04.2013. First Information

Report was registered on 19.04.2013 at the instance of Walmik

who is also one of the companions with the deceased and the

injured/claimant. Deceased Rohit succumbed to the injuries 9 FA.999-24 & ors.odt

immediately after the accident and Mayur was badly injured

and he was shifted to the hospital. He was continuously under

medication. He was required to taken to Ganpati Hospital at

Jalgaon and thereafter shifted at Wacche Hospital, Solapur. In

given facts and circumstances filing of First Information Report

on 19.04.2013 cannot be said to be unnatural. The claimants

were under trauma and they as well as their companions were

not expected to lodge First Information Report. The objection

of the learned counsel for delay in lodging FIR holds no merit.

14. Learned counsel for respondents rightly cited judgment

of Ravi Vs. Badrinarayan and others ; (2011) 4 Supreme Court

Cases 693 of which the following paragraphs are guiding :

"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 the court finds that there is no indication of 10 FA.999-24 & ors.odt

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."

15. Respondents have rightly placed reliance on the

judgment of National Insurance Company Ltd., Khamgaon Vs.

Sharda Raju Waghmare and others ; 2017 (2) Mh.L.J. 917 . In

that case, two motorcycles collided and the deceased

succumbed to the injuries. FIR was lodged after six days. In

that context, following observations are made :

"12. This F.I.R. also discloses that the informant was not an eye witness to the accident. The claimant's witness, CW 1 Sharda, widow of the deceased was not an eye witness 11 FA.999-24 & ors.odt

either. It is natural also as the deceased was admittedly riding the motorcycle all alone. The information of the informant or the claimants witness in such cases would be dependent upon what they are told about the accident by the person who had seen the accident or the Police who registered offences on the basis of the information received about commission of offences and proceeded further in the matter. Such witnesses of the claimants are not expected to have personal information of the accident. Therefore, the burden to prove the occurrence of the accident and the probable cause behind it lying upon the shoulders of the claimants would be of limited nature and it would come to an end the moment the claimants succeed in establishing the facts on the basis of the Police record and other attending circumstances, that a particular vehicle is the offending one and its rider or driver was rash and negligent in using that vehicle. After these facts are established in this way, the burden would shift upon the party which denies the claim."

16. It is stated in the First Information Report that a goods

vehicle is the offending vehicle and the number was not known

to the informant. In the statement of Mayur recorded on

21.04.2013, it is stated to be small vehicle bearing registration

No.MH-18/AA-2679 which gave dash from behind and which

was being driven rashly and negligently by respondent No.3

who happened to be the driver as well as owner. The spot

panchnama at Exh.24 also shows that a goods vehicle of

unknown number was involved in the accident. Thereafter, my

attention is adverted to affidavit in lieu of examination-in-chief 12 FA.999-24 & ors.odt

of P.W.2 Mayur who stated that a small goods vehicle gave dash

from behind and deceased and himself fell in canal which is 20

feet away from the spot of the incident. I have gone through

cross-examination of the said witness.

17. I find that there is a post mortem report, injury

certificate of deceased Mayur. Undisputedly, Mayur was

hospitalized and under medication at different places. The

police papers and the oral evidence brought on record are

sufficient to disclose that accident took place on 16.04.2013

and Rohit succumbed to the injuries whereas Mayur sustained

serious injuries. I find that on the preponderance of

probabilities, the claimants have made out case that their

motorcycle was given dash from behind which was the cause

for the accident. The claimants have discharged their initial

burden and onus shifted on the insurance company. The

appellant/insurance company did not lead any oral evidence.

18. Learned counsel for the appellant tried to show the

discrepancies from the First Information Report, spot

panchnama and statement of Mayur recorded on 21.04.2013.

The description of the vehicle varies in these documents. The

insurance cover note at Exh.29 shows that the vehicle was

make of Tata Motors (Chhota Hatti). I am of the considered 13 FA.999-24 & ors.odt

view that the nature of the vehicle whether it was a goods

vehicle or small goods vehicle would make very little

difference. There is absolutely no evidence to corroborate the

plea of appellant. The witnesses who deposed before Court did

not shatter in the cross-examination. Though initially the

registration number and the owner of the offending vehicle

was not disclosed that would not make claim of the

respondents unreliable.

19. There is every reason to infer that Mayur was

hospitalized and he was not in a position to make any

statement and the claimants in the death claim might have

been under terrible trauma due to the sudden death of their

son. Hence, belated disclosure of the offending vehicle is not

detrimental to the claim. On the contrary, cogent circumstances

are brought on record for not mentioning details of the

offending vehicle.

20. It has been brought on record that P.W.2 Mayur was a

pillion rider and when dash was given, motorcycle was thrown

in the canal which is of 20 feet deep. He is stated to have

seen the registration number of the offending vehicle at the

time of falling in the ditch. Learned counsel Mr. Mohit

Deshmukh has forcefully tried to convince this Court that it 14 FA.999-24 & ors.odt

was not possible for anybody who was dashed to have seen the

number when the level of the canal is much lower than the

level of the road. I find that the submission is attractive but in

absence of any evidence being led by the appellant/insurance

company, it cannot be said that testimony of Mayur is

unreliable. The claims are decided on the preponderance of

probabilities and the principles of the criminal jurisdiction that

proof beyond reasonable doubt cannot be made applicable. I

am not prepared to accept the submissions of learned counsel

for the appellant.

21. Reliance is placed on the judgment of Anita Sharma and

others Vs. New India Assurance Company ; (2021) 1 Supreme

Court Cases 71. The parameters for assessing evidence and the

standard of proof are laid down by the Apex Court in following

words :

"21. Equally, we are concerned over the failure of the High Court to be cognizant of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eyewitnesses, as may happen in a criminal trial; but, instead should be only to analyse the material placed on record by 15 FA.999-24 & ors.odt

the parties to ascertain whether the claimant's version is more likely than not true."

22. I am, therefore, fortified in holding that applying the

same parameters in the case at hand it has to be held that rash

and negligent driving and involvement of the vehicle are

proved.

23. Learned counsel Mr. Mohit Deshmukh has also pointed

out that the seizure panchnama has not been produced. There

are defects in the investigation and ultimately the prosecution

ended in the acquittal. The defect in the investigation and

acquittal in the criminal case would not be the circumstances

to outlaw the theory of the appellant. Appellant/insurance

company has not discharged the onus. The discharge summary

pointed out by counsel for appellant would not take the case

any further. I find no fault in the findings recorded by the

Tribunal.

24. Mr. Mohit Deshmukh, learned counsel for the appellant

relied on the judgment in case of Anil and others Vs. New

India Assurance Company ; (2018) 2 Supreme Court Cases

482 to buttress that conduct of not registering offence

promptly after the accident is relevant. In that case, the offence

was registered after one month. The person who died was the

brother of the owner of the tractor. The proper medical record 16 FA.999-24 & ors.odt

was also not made available. Hence, the award of

compensation was found to be perverse by the High Court.

The judgment of the High Court was confirmed by the

Supreme Court. Facts are distinguishable from the case at

hand. P.W.2 Mayur is the eye witness in the present case. This

judgment would not enure to the benefit of the appellant.

25. Further reliance is placed in the matter of Kalpana

Rajendra Kothari and others Vs. Santosh Arvind Jangam and

another ; (2020) 2 Mah.L.J. 561 . In that case also, there was

belated registration of First Information Report and the burden

was held to be on the claimant to prove the accident including

involvement of the vehicle. In that case also, informant was

the eye witness, but he did not step into witness box. The facts

of the case at hand are different. Eye witness has been

examined and the police papers corroborate claimants case in

discharging the burden. This judgment will not help the

appellant.

26. Further reliance is placed on the judgment of the United

India Insurance Company Ltd. Vs. Dattarao Madhavrao

Dehmukh and others. In peculiar facts and circumstances of

this case it was held that eye witness was not reliable and it

was held that there was no cogent evidence to suggest 17 FA.999-24 & ors.odt

involvement of the offending vehicle. Again the facts are

distinguishable and the judgment will not help the appellant.

27. Learned counsel for the appellant has also tried to advert

my attention to the nature of injuries and the manner in which

the accident occurred. I find that these submissions are not

sufficient to hold that it was a collusive claim and the vehicle

was planted. There is sufficient evidence to support the

accident and rash and negligent driving by respondent No.3. It

is rightly submitted by Mr. Amol Sawant, for respondents that

the insurance company could have adduced the evidence of

driver/owner of the offending vehicle or could have

complained in respect of any fraud or planting of the offending

vehicle.

28. It is further submitted that the independent witnesses

were available but not examined by the claimants. It cannot be

lost sight of that the claimants were not from the same vicinity.

After occurrence of the accident, people gathered but even

during investigation, no eye witnesses were found. The injured

Mayur was the person who can be treated to be eye witness

because he was pillion rider on the motorcycle which was

dashed by the offending vehicle. The material brought on

record is sufficient to make out a case for the appellant on 18 FA.999-24 & ors.odt

preponderance of probabilities. Therefore, this submission also

cannot be accepted.

29. Respondent placed reliance on judgment of Geeta Dubey

and others Vs. United India Insurance Co. Ltd and others ; AIR

2025 Supreme Court 386 to demonstrate as to what would be

the standard of proof. In that case, a car was given dash by a

truck and the deceased was travelling in the car. FIR did not

mention particular of the vehicle or time of the accident. It was

stated to be unknown truck that had hit the car. In the above

context, following observations are relevant :

"20. Firstly, it is well settled that in claim cases, in case the accident is disputed or the involvement of the vehicle concerned is put in issue, the claimant is only expected to prove the same on a preponderance of probability and not beyond reasonable doubt. [See Sajeena Ikhbal and Others, V. Mini Babu George and Others, (2024) SCC OnLine SC 2883]. We also deem it appropriate to extract the following paragraphs from the judgment of this Court in Bimla Devi & Ors. V. Himachal Road Transport Corporation & Ors., (2009) 13 SCC 530. Repelling similar contentions raised challenging the accident and the involvement of the vehicle in question, this Court held as follows :

"14. Some discrepancies in the evidence of the claimant's witnesses might have occurred but the core question before the Tribunal and consequently before the High Court was as to whether the bus in question was involved in the accident or not. For the purpose of determining the said issue, the Court was required to 19 FA.999-24 & ors.odt

apply the principle underlying the burden of proof in terms of the provisions of Section 106 of the Evidence Act, 1872 as to whether a dead body wrapped in a blanket had been found at the spot at such an early hour, which was required to be proved by Respondents 2 and 3.

15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties.

16. The judgment of the High Court to a great extent is based on conjectures and surmises. While holding that the police might have implicated the respondents, no reason has been assigned in support thereof. No material brought on record has been referred to for the said purpose.""

30. In the above matters, Apex Court found that the

offending vehicle was found to be involved in the accident. For

arriving at those conclusions various factors enumerated in

paragraph No.21 were considered. Out of them, last two

factors which are as follows would help this Court.

"21. Secondly, applying the test of preponderance of probability, we find that the claimants have established their case that it was the truck bearing registration no. MP-

20 FA.999-24 & ors.odt

19-HA-1197 which was involved in the accident with car bearing no. MP-19-CB-5879 wherein the deceased was travelling. We say so for the following reasons:-

      a.     .....
      b.     .....
      c.     .....
      d.     .....
      e.     .....
      f.     .....
      h.     The insurance company examined Op.W.-1 Raj

Kumar Kachhwah who admitted that till the date of his deposition, no information or complaint was given to the senior police officers stating that an attempt is being made by the claimants and the owner and driver of the vehicle to wrongly include the vehicle bearing No. MP-19-HA-1197 in the case. The witness also admitted that no steps to cancel the investigation of the police has been taken and no enquiry has been done into the veracity of the claim. i. The MACT, on appreciation of the overall conspectus, particularly impressed by the fact that the insurance company did not lodge any complaint of collusion and about the involvement of the truck in an illegal manner concluded that it was truck bearing registration no. MP-19- HA-1197 which hit the car bearing no. MP-19-CB-5879 from behind."

31. In the case at hand also, appellant/insurance company

though came with the defence of planting of offending vehicle,

did not make any endeavour to register offence.

32. The learned counsel for the appellant did not seriously

dispute the material on record regarding quantum arrived at 21 FA.999-24 & ors.odt

by the Tribunal. I find that there is no reason to cause any

interference in the impugned judgments and orders. I,

therefore, pass following order :