Shri.Trymbak Mahadu Nagare vs Smt. Laxmi Popat More

CNR No : HCBM010160612008

1-FA-1126-2008.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.1126 OF 2008
Digitally signed
by SATISH
RAMCHANDRA
SANGAR
Date:
2026.10.27
18:35:38 +0530
SATISH
RAMCHANDRA
SANGAR
Shri Trymbak Mahadu Nagare, ]
Age : 53 years, Occupation : Nil, ]
Residing at : Pimpalgaon Bahula, Satpur, ]
Nashik – 422007. ] ...Appellant
Versus
1. Laxmi Popat More, ]
Age – 42 Years ]
2. Rajesh Popat More, ]
Age – 35 Years ]
3. Vinod Popat More, ]
Age – 33 Years ]
4. Kum.Sandhya Popat More, ]
Age – 27 Years ]
5. Kum.Roshani Popat More, ]
Age – 25 Years ]
6. Kum.Swapnil Popat More, ]
Age – 23 Years ]
Respondent Nos.1 to 6 are residing at:- ]
Swarbaba Nagar, Near Indira General Stores, ]
Satpur, Nashik. ]
7. Sau.Sunanda Maruti Kalkhe, ]
Age – 47 Years, Residing at : Rajwada, ]
Nanapeth, Pune. ]
8. Shri.Tanaji Govind Shinde, ]
Age – 47 Years, Residing at : Trimbakeshwar, ]
District : Nashik. ]
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9. National Insurance Co. Ltd. ]
Balwant Chambers, Sharanpur Road, Nashik. ] ...Respondents
====================================================
Mr.Rahul Motkari a/w Ms.Manasi Advocates for Appellant.
Pawar:-
Ms.Poonam Mittal:- Advocate for Respondent No.9 –
National Insurance Co. Ltd.
====================================================
CORAM : S. M. MODAK, J.
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DATE : 19 OCTOBER 2026
ORAL JUDGMENT :-
1. Heard learned Advocate Shri.Motkari for the Appellant–owner
of the tractor in question. Also heard learned Advocate Ms.Mittal for
Respondent No.9 – National Insurance Company Limited, who is the
Insurer of the trolley bearing MH–15–M–3080.
2. It is true, the Motor Accident Claims Tribunal – Nasik
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(“Tribunal”) as per the judgment dated 6 February 2003 passed in
M.A.C.P. No.359 of 1997, has initially directed the owner of the
tractor, Shri.Trymbak, Shri.Tanaji, owner of the trolley bearing MH–
15–M–3080 and the Insurer of the said trolley being responsible and
directed them to pay a compensation of Rs.2,55,000/- (Rupees Two
Lakh Fifty Five Thousand) along with interest for death claim.
However, on the application bearing M.A.No.8 of 2003 filed by the
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Insurer, the Tribunal vide its order dated 19 July 2007 reviewed this
judgment and permitted the parties to adduce fresh evidence. Two
issues are also framed. They are as follows:-
(a) Whether the claimants prove that trolley bearing
registration No. MH–15–M–3080 was attached to the
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tractor on 6 February 2003 at the time of the accident?
(b) If not, whether the insurer - opponent No.3 is liable to
satisfy the award?
Pleadings of the parties
3. The Petition was filed involving a death claim against in all 3
Respondents. They are:-
(a) Trymbak Nagare, owner of the tractor No.MH–15–F–6531.
(b) Tanaji Shinde, owner of the trolley No.MH–15–M–3080.
(c) Insurer of above said trolley.
4. Opponent Nos.1 and 2 have filed common written statement.
They have denied the averments in the Petition. They have pleaded the
following facts:-
(a) The Opponent No.1 was driving tractor No.MH–15–F–
6351. Trolley MH–15–M–3080 was attached to it. He was
driving in a moderate speed. He has attributed negligence to
the deceased.
(b) The trolley is insured with Opponent No.3. Hence prayed
for dismissal of the Claim Petition against them.
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5. The Respondent No.3 – Insurance Company has filed a written
statement averring that the tractor No.MH–15–A–6531 was not
insured with their company whereas, tractor No.MH–15–N–3097 was
insured with them. Negligence was attributed to the deceased.
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6. The Tribunal has framed three issues on 16 February 1999
(Page 65). Following persons have given evidence:-
(a) Laxmi More, widow.
(b) Niranjan Shah, manager of the employer of the deceased.
(c) Owner of the tractor Trymbak has given evidence.
th
7. On this background, the Tribunal as per Award dated 6
February 2003 directed all the three Respondents to pay compensation
of Rs.2,55,000/- (Rupees Two Lakh Fifty Five Thousand) with other
benefits. Out of Respondents, Insurer instead of preferring an Appeal
filed an Application for review on the ground that there is error in the
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judgment. It was allowed on 19 July 2007. As mentioned above,
certain issues were newly framed.
8. Thereafter, Claimants have not adduced any additional evidence.
Even the owner of the tractor Trymbak and Insurer of trolley have not
given any evidence. It is only the owner of the trolley Tanaji has
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entered into witness – box . (8 January 2008 : Page 93 ). On this
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background, the Tribunal has exonerated the Insurer and held the
owner of the tractor to pay the compensation. The findings of the
Tribunal are as follows:-
Findings
(a) The owner of the tractor even though present in the Court,
has not shown any courage to enter into the witness–box.
He was the person who had stated to owner of the trolley
that his trolley was attached to the tractor. It is right but at
the same time, the learned Member overlooked the fact that
except relying upon the Police papers, the Insurer has not
given any evidence.
(b) The evidence of owner of the trolley becomes hearsay
evidence. First had knowledge was to owner of the tractor.
This is not fully true. The owner of the trolley is also having
knowledge.
(c) In the copy of FIR and Panchnama, there is overwriting.
Earlier number of the trolley was overwritten with number
MH–15–M–3080. But, number of the trolley on Page No.2
of FIR remains. There is reference of trolley No.MH-B-15-
7082.
(d) Interim compensation was directed only against owner of
the tractor.
(e) Trolley No.MH-15-7082 was attached to the tractor and not
trolley No.MH-15-M-3080. In order to avoid liability, the
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owner of the tractor with owner of the trolley, tried to bring
Opponent No.3 into picture, so that, owner of the tractor is
not required to pay compensation.
9. These findings are challenged by learned Advocate Shri.Motkari
for the Appellant who is the owner of the tractor. On the aspect of
review jurisdiction, he relied upon the following judgments:-
(a) Ujwala Hanmantrao Deshmukh and Others V/s.Shivshankar
1
Ananda Londhe and Others
(b) Meena Popat Mhaske and Another V/s. Manager, Bajaj
2
Alliainz General Insurance Company Limited and Others .
I am not commenting anything about the plea about exercise of review
jurisdiction. It is for the reason, that the order passed in review was not
challenged and after the said order, the Tribunal has passed fresh order.
10. On the point of negligence, learned Advocate Shri.Motkari has
not advanced any arguments. So the issue is restricted about which
trolley i.e. MH–15–M–3080 or MH–15–B–7082 was attached to the
tractor. Learned Advocate Ms.Mittal has placed on record a copy of
insurance policy issued in the name of Tanaji–Original Respondent
No.1. Two vehicles are mentioned. MH–15–M–3097 and MH–15–M–
3080. There is no mention of vehicle No.MH–15–F–6531.
Admittedly, MH–15–F–6531 tractor number as per Claim Petition is
1
2020 (4) All.M.R.433
2
2019 (6) Bom.C.R. 392
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not insured with Original Respondent No.3. It is also not the case of
owner of the tractor. Insurer has also pleaded that they have insured
tractor No.MH–15–N–3097. But that is not the vehicle involved. So it
is undisputed fact that Trymbak, owner of the tractor has not insured
his tractor with any of the Company. At the same time, it is undisputed
fact that trolley No.MH-15-M-3080 was insured with Original
Respondent No.3.
11. Now we have got oral evidence of the witnesses of the Claimants
and that of owner of the tractor and owner of the trolley. Admittedly,
Insurer at any time has not given any evidence prior to review and after
review. Unfortunately, the Tribunal has not made any comment on this
aspect. So we have got oral evidence on one hand and documentary
evidence in the form of Police papers on the other hand. The learned
Member has given more weightage to the Police papers. One cannot
dispute that they are public record and they can be considered in
inquiry. But the issue does not rest there. While appreciating those
Police papers, the Court has also to consider the oral evidence which is
on record and the evidence which could have been given but not given.
12. When I have read the oral evidence, I find the following facts:-
(a) The owner of the trolley Tanaji in his evidence (Page No.93)
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has referred about hiring of his trolley No.MH–15–M–3080
by Trymbak Nagare, owner of the tractor. He also admits,
owner of the tractor Trymbak also own trolley No.MH–15–
B–7082. (not insured).
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(b) The accident took place on 17 December 1996. The driver
of the tractor has dashed to a person riding on a bicycle and
due to the injuries, he died.
(c) The witness Tanaji has explained ignorance whether tractor
was insured with some Company. He admits about cordial
relationship with the tractor owner Trymbak.
(d) He admits that in the written statement, he has not pleaded
that he along with tractor owner used to cultivate lands
together. At this stage, learned Advocate Shri.Motkari
submitted that in the written statement, there is averment
that both used to help each other in agricultural operation.
(e) He has denied the suggestion that at the time of accident,
the trolley No.MH–15–B–7082 belonging to Trymbak was
attached to his tractor.
(f) He has denied the suggestion that as trolley belonging to
Mr.Trymbak was not insured and that is why he wants to
help Mr.Trymbak and deposed falsely that his trolley was
attached to the tractor.
(g) Whereas, Mr.Trimbak, owner cum driver of the tractor in his
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evidence has stated that on the date of accident i.e. 17
December 1996, the trolley belonging to Opponent No.2–
Tanaji was attached to his tractor.
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(h) Admittedly, he has not mentioned the trolley number. Even
the Insurer has also not suggested to him about any specific
trolley was attached to his tractor on the date of accident i.e.
trolley No.MH–15–B–7082 and not trolley No.MH–15–
M–3080.
13. As against this, learned Advocate Ms.Mittal has placed on record
a copy of the Insurance Policy issued by their Company bearing
No.473910. I have taken it on record because it was part of the record
and proceeding. Though she has also annexed some of the
correspondence but it is not submitted that they were part of the record
before the Tribunal. It includes a statement by Sampat Damodhar Kale
who was present at the spot when the accident has happened and he
has mentioned the trolley number as MH–15–B–7082 . Admittedly,
this is not referred by the Tribunal.
14. According to Ms.Mittal, change of trolley number was done so
that the owner of the tractor will be relieved from paying the
compensation because his tractor and trolley was also not insured.
Even though this argument is attractive, ultimately, this Court has to
decide the issues on the basis of available evidence. Even though
Ms.Mittal may be right but what is there in the evidence has to be
tested.
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15. Ms.Mittal has also invited my attention to the overwriting in two
documents:- They are:-
(a) F.I.R. on Page No.82. It was lodged by one Police Constable
L.D.Phuge attached to Satpur Police Station.
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(b) Spot Panchnama dated 17 December 1996 on Page No.85.
According to her, in both these documents, the trolley No.MH–15–M–
3080 was written subsequently. Earlier, different number was written
and according to her, this grievance appealed to the Tribunal when
review order was passed and when the judgment under challenge was
delivered.
16. Whereas, according to Mr.Motkari, the Tribunal has exercised
the review jurisdiction which is in fact not warranted and these two
Police documents were already available before the Tribunal when the
first judgment was delivered. According to him, in fact, this theory that
it is not the trolley No.MH–15–M–3080 but trolley No.MH-15-B-
7082 was involved was not proved by way of satisfactory evidence.
According to him, merely giving a suggestion to the tractor owner and
trolley owner that trolley No.MH–15–B–7082 was involved, is not
sufficient.
17. Even I have seen the complaint on Page No.82 and the spot
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panchnama on Page No.85. Certainly some overwriting can be seen. It
is true on Page 2 of FIR (Page 82), trolley number referred is MH–15–
B–7082. Whereas, on another page on spot panchnama, there is
overwriting in trolley number. There are two aspects. Who has done it
and secondly, which trolley was attached to the tractor. Whether it is
trolley No.MH–15–M–3080 or trolley No.MH–15–B–7082. It is
difficult for the Claimants to state which trolley number was attached.
It will be in the special knowledge of the owner of the tractor and
owner of the trolley. Both of them entered into the witness–box. There
are two versions available before the Tribunal. They are, it is the trolley
MH–15–M–3080 insured with the National Insurance Company
which is attached and second version, that is not the real trolley but it
was trolley No.MH–15–B–7082 was attached. It is the cardinal
principle of Evidence Act that a party who alleges a particular fact has
to prove it and if it is not proved, an adverse inference can be drawn.
18. When I have read the evidence of the tractor owner, he has not
referred which trolley number was attached to his tractor but when the
trolley owner has entered into the witness–box, he has said, it is trolley
No.MH–15–M–3080 was attached. He was cross-examined by the
National Insurance Company. It is true, any party may prove a fact by
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two modes. One by putting a case to the rival party during cross–
examination and securing admission or by adducing own evidence.
19. In this case, the National Insurance Company has only relied
upon overwriting in the Police papers and tried to put up their case to
the owner of the tractor and trolley. As I have already said, there is
overwriting. Now which trolley is attached can be explained by the
tractor owner or trolley owner or by collecting independent evidence
by way of investigation by the Insurance Company. The Police papers
are prepared subsequently on the basis of investigation by the Police.
Admittedly, there is no evidence except Police papers containing
overwriting given by the Insurer that trolley No.MH–15–B–7082 was
involved. It is very well true that in a summary inquiry, Police papers
can be read in evidence. But, considering the facts, this rule is not
applicable. Because, there is no independent evidence given by the
Insurer by examining witnesses including the Police who prepared
Police papers or anyone who has seen the trolley at the time of
accident. As against this, there is evidence given by trolley owner which
is not seriously challenged. So, it is difficult to believe that trolley
No.MH-15-B-7082 was in fact attached to the tractor in question.
20. Now, the second question is whether the trolley No.MH–15–M–
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3080 was really attached. If we consider the evidence of Opponent
No.2 i.e. Tanaji, we can find that he has categorically stated that it was
trolley No.MH–15–M–3080 was attached. During cross-examination,
except getting admission about his cordial relationship with the tractor
owner, nothing has come so as to support the theory put up by the
Insurance Company. I do not find that the theory put up by him about
involvement of trolley No.MH–15–M–3080 was demolished.
21. On this background, I feel that the Tribunal has committed
wrong in exonerating the Insurance Company. The Tribunal was only
influenced by the overwriting in the Police papers. The Tribunal has
not considered the oral evidence given by the trolley owner and not
considered the lapse on the part of the Insurer to give evidence. If it is
so, the Tribunal has committed wrong in exonerating the Insurance
Company. On the basis of evidence, it can very well be said that it was
the trolley No.MH–15–M–3080 was attached to the tractor in
question.
22. If the driver of the tractor was found negligent, the owner of the
trolley is also responsible because it is attached to the tractor and the
liability is joint and several. In view of that, the Appeal needs to be
allowed. Hence the order:-
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-: O R D E R :-
(a) The Appeal is allowed.
(b) The order passed by the Motor Accident Claims Tribunal –
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Nasik dated 10 January 2008 in M.A.C.P. No.359 of 1997
is modified as follows:-
(i) The original opponent No.1 – Trymbak, the original
opponent No.2 – Tanaji and the insurer of the trolley i.e.
National Insurance Company Limited are jointly and
severally directed to pay compensation of Rs.2,55,000/-
(Rupees Two Lakh Fifty Five Thousand) along with interest
granted by the Tribunal to the claimants.
(ii) The amount of statutory deposit along with the interest be
transferred to the Tribunal for the purpose of disbursal of the
compensation.
(iii) If the Opponent No.1 – Trymbak has paid the amount, there
is no question of further payment.
23. With these observations, the Appeal is disposed of.
24. Pending Applications, if any, also stand disposed of.
[S. M. MODAK, J.]
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