Full Judgment Text
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.606 OF 2019
WITH
CIVIL APPLICATION NO.3025 of 2019
IN FA/606/2019
M/s Shriram Insurance Company Ltd.,
E8 ERIP RIICO Industrial Area, Sitapura
Jaipur – 302 022 (Rajasthan) India.
… Appellant .
… Versus …
1 Vanita wd/o Dhanaji Marekar,
Age 30 yrs., Occ. Household,
2 Atharv Dhanaji Marekar,
Age 8 yrs., Occ. Education,
3 Ankita d/o Dhanaji Marekar,
Age 4 yrs., Occ. Education,
(Nos.2 and 3 are minor and U/G of
their natural mother i.e. respondent No.1)
4 Namdeo Tukaram Kamble,
Age major, Occ. Business,
R/o Deshmukh Galli, Akkalkot,
Tq. Akkalkot, Dist. Solapur
At present Shivganga Nagar,
Patr No.1, Plot No.162,
Nayee Jindagi, Solapur, Dist. Solapur.
5 Ram Shivram Marekar ( dead ),
6 Saraswati w/o Ram Marekar,
Age 50 yrs., Occ. Household,
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Nos.1, 2, 4 and 5 are r/o Lohgaon,
Tq. Tuljapur, Dist. Osmanabad.
… Respondents .
...
Mr. V.N. Upadhye, Advocate for the appellant
Mr. S.B. Choudhari, Advocate for the respondent Nos.1 to 3
...
CORAM : SMT. VIBHA KANKANWADI, J.
th
RESERVED ON : 05 AUGUST, 2019
th
PRONOUNCED ON : 24 SEPTEMBER, 2019
JUDGMENT :
1 Present appeal has been filed by the original respondent No.2
challenging the Judgment and Award passed in M.A.C.P. No.112 of 2012
dated 06.01.2017 by learned Member, Motor Accident Claims Tribunal,
Osmanabad, whereby the petition filed by present respondent Nos.1 to 3
original claimants was allowed.
2 The original claimants had come with a case that they are the
widow and children of one Dhanaji Ram Marekar. Respondent Nos.3 and 4
are the parents of Dhanaji. Dhanaji was proceeding on his motorcycle
bearing No.MH 13/U9013 at about 6.00 p.m. on 27.05.2011 on Solapur
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Naldurg Highway to go to his village Lohgaon. When he was near village
Dhangarwadi, he was dashed by one Tata Magic bearing No.MH 13/B2719,
which had come from opposite direction in high speed. It is stated that the
said accident had taken place due to negligence of Tata Magic driver. Dhanaji
sustained severe injuries and then was admitted to Balwant Hospital, Solapur
where he expired on the next day. Respondent No.1 is the owner of Tata
Magic and the said vehicle was insured with respondent No.2 on the date of
accident. Driver of the said vehicle has been prosecuted by Naldurg police.
It is stated that deceased aged 36 years was an agriculturist as well as had
other sources of income. He was getting Rs.2,00,000/ per year from
agriculture, Rs.1,00,000/ per year from preparation of jaggery and
Rs.6,000/ per month from milk business. The claimants had prayed for
compensation of Rs.10,00,000/ from respondent Nos.1 and 2, jointly and
severally.
3 Respondent Nos.1, 3 and 4 though appeared did not file written
statement.
4 Respondent No.2 insurance company filed written statement and
denied all the averments in the petition. It has been specifically denied that
there was accident between the motorcycle driven by deceased Dhanaji and
Tata Magic, which was owned by respondent No.1 and insured with it on the
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alleged date, time and place. Age, occupation and income of the deceased
has been denied. It has been stated that false offence has been registered
against driver in collusion with the police. Alternative prayer has also been
taken that since there is breach of terms of policy, respondent No.2 cannot be
held responsible for payment of compensation.
5 After the issues were framed, claimants have led oral as well as
documentary evidence. Taking into consideration the said evidence as well
as hearing both sides the learned Member has allowed the petition.
Respondent Nos.1 and 2 have been directed to pay compensation of
Rs.15,77,000/ including No Fault Liability with interest @ 9% per annum
from the date of the petition till actual realization of the entire amount. The
said Judgment and Award has been passed on 06.01.2017 which is now
under challenge in this appeal.
6 Heard learned Advocate Mr. V.N. Upadhye for appellant
insurance company and also perused his written notes of argument. Heard
learned Advocate Mr. S.B. Choudhari for respondent Nos.1 to 3original
claimants. Other respondents though served failed to appear, however, note
has to be taken that respondent No.5, father of deceased Dhanaji, expired
during the pendency of this appeal and it is stated that he is survived only by
respondent No.6.
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7 It has been vehemently submitted on behalf of appellant that the
initial burden to prove the accident and death of Dhanaji in the said accident
is on the shoulders of claimants. The evidence on record would show that
the Tata Magic vehicle, owned by respondent No.1, has been falsely involved.
The accident is stated to have taken place on 27.05.2011, however, the First
Information Report has been lodged belatedly on 21.06.2011 after about 25
days, that too by the brother of the deceased and it has been tried to be
contended, that since he was in grief and his mental condition was not
proper, he could not lodge the report. Merely because the respondent No.1
has not filed written statement, that does not absolve the claimants from
proving the accident. Further, only on the basis of contents of the First
Information Report it cannot be said that the involvement of Tata Magic
owned by respondent No.1 and insured with respondent No.2 has been
proved by the claimants. CW 1 Vanita, who is the widow of the deceased,
was admittedly not with the deceased at the time of accident. The so called
eye witness CW 2 Dipak Lokhande cannot be believed. Taking into
consideration his conduct immediately after the accident, though he states
that he had seen the said accident, he did not inform the fact of accident to
anybody, especially police. Therefore, the collusion between the driver,
owner and the police in showing the involvement of Tata Magic is apparent.
He placed reliance on the following decisions :
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1 Anil and others vs. New India Assurance Co. Ltd. & ors.,
2018 STPL 1205 SC .
2 Bajaj Allianz General Insurance Co. Ltd. vs. Manisha
w/o Lahu Kale and others in First Appeal No.2742 of 2015
decided on 04.09.2018.
3 New India Assurance Company Ltd. vs. Laxman
Dadarao Karpe and others in First Appeal No.2973 of 2013
decided on 28.07.2015.
4 M/s. Shriram General Insurance Company Ltd. vs.
Narayan Nivrutti Bembde and others in First Appeal No.1535
of 2013 decided on 23.01.2014.
5 New India Assurance Company Ltd. vs. Ashalata
Suryakant Patil and others in First Appeal No.2829 of 2015
decided on 04.10.2018.
5 Faridabegum Shaikh Yousuf and others vs. Daulat Khan
Sardar Khan (Dead) through L.Rs. & ors., 2015 STPL 11564
Bombay .
6 M/s. I.C.I.C.I. Lombard Insurance Company Ltd. vs.
Janabai wd/o Dinkarrao Ghorpade and others in First Appeal
No.3333 of 2015 decided on 14.12.2018.
In all these cases, taking into consideration the evidence on
record, the Hon'ble Supreme Court as well as this Court held that the
claimants have failed to discharge even the initial burden cast on them.
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8 It has been further submitted on behalf of the appellant in the
alternative that the quantum has also been wrongly awarded by the learned
Tribunal. Though notional income has been considered in view of absence of
income proof, yet, 50% of the said amount has been awarded towards future
prospect, which is not correct as per the decision of Constitution Bench in
National Insurance Co. Ltd. vs. Pranay Sethi reported in (2017) 16 SCC 680.
He has submitted that it ought to have been 40% and then the non pecuniary
damages should also be at the maximum Rs.70,000/ in view of the decision
in Pranay Sethi . It was also submitted that since the driver of the alleged
offending vehicle was not having valid badge and effective driving licence to
drive the said vehicle, learned Tribunal ought to have held that there was
breach of terms of policy.
9 Per contra, the learned Advocate appearing for the respondents
claimants submitted that the involvement of the vehicle has been proved.
Though there is belated First Information Report, yet, reason has been
mentioned as to why it is belated. It is not in dispute that the driver of the
Tata Magic, owned by respondent No.1, was prosecuted by police. The
inquest panchnama was prepared on 28.05.2011 and in that document it is
specifically stated that deceased was dashed by Tata Magic. Though number
has not been mentioned, yet, the make of the vehicle was definitely
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mentioned. Further, there was no reason to disbelieve the testimony of the
eye witness CW 2 Dipak Lokhande. Therefore, when claimants had
discharged their initial burden to prove the accident and death of Dhanaji in
the said accident, the onus had shifted on the insurance company to disprove
the said fact. However, the insurance company has not led any evidence,
therefore, the Tribunal has rightly held that the said vehicle was involved in
the accident. Further, in order to prove the breach of terms of policy also, no
evidence was led by the insurance company, though a defence was taken that
the driver was not holding badge and was not holding valid and effective
driving licence to drive the said vehicle. The quantum has been rightly
assessed and therefore, it requires no interference.
10 Taking into consideration the points raised in the appeal and at
the time of arguments following points arise for determination; reasons for
the same are as follows.
1 Whether the claimants had proved involvement of Tata
Magic bearing No.MH 13/B2719 in the accident ?
2 Whether there was any breach of terms of policy by
respondent No.1 ?
3 Whether claimants are entitled to get compensation from
respondents ?
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If yes, what would be the quantum ?
R E A S O N S
11 Point No.1 :
As regards the fact of accident is concerned, the initial burden is
always on the claimant/ claimants to prove the same, which includes not
only the involvement of the vehicle but also the manner in which the accident
had taken place, as pleaded in the petition. All those authorities, which have
been relied by the learned Advocate appearing for the appellant, have
reiterated the basic principle as aforesaid i.e. the burden is on the claimants
to prove the accident including the involvement of the vehicle/vehicles. In
First Appeal No.2742 of 2015 (supra) note has been taken of the decision of
Division Bench of this Court in First Appeal No.32 of 2013 decided on
11.07.2013 (Goa Bench), wherein it was held that mere production of police
papers and exhibiting those documents does not dispense the proof of
contents of those documents. It was also held that merely on the basis of
certified copies of First Information Report, Spot Panchnama and other
documents the claimants cannot prove their case. Therefore, it is now
required to be seen, as to whether the evidence adduced in this case fulfills
the criteria.
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12 The First Information Report has been admittedly lodged
belatedly. At this stage itself, note can be taken regarding the ratio in Ravi
v/s. Badrinarayan and others reporting in (2011) 4 SCC 693 that delay in
lodging the FIR, can not be taken as a main ground for rejecting the claim
petition. Here not only the point of delay has been canvased but it is coupled
with noninvolvement and collusion. Therefore, facts and evidence is
required to be scanned taking into consideration these aspects. Informant
Balaji is the brother of deceased and in the First Information Report, which
has been lodged after 25 days of accident (on 21.06.2011), number of Tata
Magic has been given and then it is stated that when he came to know about
the accident, he went to hospital, where Dhanaji was admitted. He had come
to know that two persons from his village viz. Laxman Uttam Kamble and
Mahesh Rangnath Deshmukh had admitted Dhanaji to hospital regarding
details of accident. It appears that Dhanaji was unconscious on that day but
on the next day i.e. on 28.05.2011 he expired at about 1.00 p.m.. It also
appears from the contents of the First Information Report that the police
were calling Balaji, since the date of post mortem and inquest panchnama, to
lodge First Information Report but Balaji had not gone to Police Station. He
has tried to explain that, since he was in grief and his mental condition was
not proper, inspite of messages given he could not lodge the report. The
claimants have not examined Balaji for the reasons best known to them. No
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doubt, he was not eye witness but then he could have thrown light as to why
he had lodged the First Information Report belatedly and no other person
could have lodged the report at any earlier point of time. Interesting point to
be noted is that the inquest panchnama was executed on 28.05.2011 when
Balaji was present. The inquest panchnama Exh.32 only makes a statement
that motorcycle driven by Dhanaji was dashed by Tata Magic. Why First
Information Report was not taken down at that point itself is a question. It
will not be out of place to mention another interesting fact that claimants
have examined CW 2 Dipak Lokhande, whose name is not appearing in
inquest panchnama or in the spot panchnama or even in First Information
Report, but then he say that he had seen the accident. So also, he says that
the accident was witnessed by Laxman Kamble and Mahesh Deshmukh from
his village. Now said Mahesh Deshmukh is, in fact, panch to the inquest
panchnama. Therefore, if he was an eye witness to the incident, why he did
not inform the said fact and ask the police to incorporate the vehicle number
of Tata Magic in the inquest panchnama itself, is also a question.
Conveniently the claimants have kept him out of witness box, for the reasons
best known to them. Therefore, mere mention of Tata Magic in inquest
panchnama will not be sufficient to hold that it was the Tata Magic belonging
to respondent No.1 and insured with respondent No.2 on the date of the
accident.
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13 CW 2 Dipak Lokhande has supported the claimants in respect of
the manner in which the accident took place. He says that he was proceeding
with Laxman Kamble on motorcycle and they had met Dhanaji on road,
thereafter, they all had tea in one Hotel and then Dhanaji proceeded further
and these two persons on one motorcycle were following him. He says that
he had noted the Tata Magic number. He has gone further and said that he
as well as Laxman Kamble intercepted the said jeep, so also, Mahesh
Deshmukh, who had come in bus, which was going from SolapurNaldurg
and all of them had taken Dhanaji to Balwant Hospital, Solapur. In his cross
examination taken by insurance company it can be seen that though this
witness had given the motorcycle number in his affidavitinchief, in cross he
has clearly stated that he will not be able to give the motorcycle numbers of
Dhanaji as well as the motorcycle on which he was proceeding. If the said
motorcycle numbers were not in his memory, then on what basis he was
giving the number of Tata Magic, is a question. Another fact to be noted is
that he says that he had asked the driver of the Tata Magic about his name
and then said driver had told his name to him, yet he has not given the name
of the driver either in his examinationinchief or any other place. He has
conveniently stated that he is unable to remember the same. He was not able
to give the location of the spot, where the accident had taken place. He was
not even able to tell the name of the hospital where he had admitted Dhanaji.
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In clear words he has stated that he did not go to police on his own, either to
lodge complaint or to give statement. He has not come with a case that he
had informed the vehicle number to Balaji at any earlier point of time.
Therefore, taking into consideration his entire evidence, it appears that he is
a got up witness. At the costs of repetition it can be said, that the claimants
have not examined Laxman Kamble and/or Mahesh Deshmukh, whose names
are appearing in First Information Report. First Information Report does not
show name of CW 2 Dipak Lokhande.
14 The spot panchnama has been prepared on 21.06.2011, that
means, after the First Information Report was lodged. In fact, the claimants
ought to have examined the investigating officer also to show as to why even
after getting information regarding death of Dhanaji in vehicular accident on
28.05.2011 itself no offence was tried to be lodged before 21.06.2011 against
the driver of the Tata Magic and no attempt was made to execute spot
panchnama, immediately after the execution of inquest panchnama. Again,
at the costs of repetition, it can be said that when Mahesh Deshmukh, who is
stated to be one of the eye witnesses, was the panch to the inquest
panchnama, he could have shown the spot to the police on that day itself and
the spot panchnama could have executed. Conduct of the police in waiting
for some of the relatives of the deceased to lodge the report is unjustifiable,
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as the criminal law could have been set in motion by anybody. What inquiry
was made by police during the said period of 25 days has not been brought
on record. If persons who had the knowledge about the accident, with the
number of the offending vehicle do not come forward to lodge the report,
then this point is required to be considered, when defence of 'collusion
between the driver and/ Owner of the offending vehicle' raised by the
insurance company is taken. No doubt, the tendency of general public who
witnesses the accident is, not to approach police voluntarily. But in this case,
those persons/ eye witnesses have helped police in preparation of
panchnama; yet did not have a word or disclosure of number of vehicle who
was negligent has created doubt. Therefore, taking into consideration all
these aspects, merely because an offence was registered against the driver of
the vehicle owned by respondent No.1 will not prove the involvement of that
vehicle in the accident. Conclusion has to be drawn under the said facts that
the claimants have failed to prove involvement of Tata Magic bearing No.MH
13/B2719 in the said accident.
15 There is no doubt that Dhanaji expired in vehicular accident but
the burden was on the claimants to prove that the said accident was caused
due to the negligence on the part of the driver of Tata Magic bearing No.MH
13/B2719. Testimony of CW 2 Dipak Lokhande is untrustworthy and the
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claimants have failed to examine the important witnesses, who had seen the
accident. The accident had taken place at about 6.00 p.m. on 27.05.2011,
that means, in the summer season and therefore, there would have been
sufficient light to identify the vehicle as well as note down the number. None
of the eye witnesses had approached the police prior to 21.06.2011 raises
doubt. Hence, I come to the conclusion that the claimants had miserably
failed to discharge the initial burden of proof regarding the involvement of
Tata Magic bearing No.MH 13/B2719. The conclusion drawn by the learned
Tribunal is erroneous in that respect. Hence, the point is answered in the
negative.
16 Point No.2 :
In view of my findings to Point No.1, in fact, this point does not
survive, but in the alternative it will have to be considered. The insurance
company contends that the driver of the Tata Magic was not holding required
badge. It is submitted that it is an admitted position that the driver was not
having proper endorsement to drive public service vehicle. The insurance
company has not adduced any independent witness and tried to rely on the
documents which have been produced by the claimants. The certificate of
registration of the said vehicle shows that it was registered as taxi. The
driving licence of said vehicle was not produced by claimants and there was
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no attempt on the part of the insurance company to examine RTO. When
evidence has not been led it cannot be stated that there is any breach of
terms of policy, point is therefore, answered in the negative.
17 Point No.3 :
Again, when I have already come to the conclusion that the
claimants have failed to prove that Tata Magic owned by respondent No.1
and insured with respondent No.2 was involved in the accident, under such
circumstance, though appeal has not been filed by respondent No. 1, yet,
liability to compensate claimants cannot be fastened against him as well as
the insurance company. The entire claim will have to be dismissed by
allowing this appeal. Under such circumstance, it is not necessary to consider
the alternative submissions made on behalf of appellantinsurance company
regarding excessive amount of compensation awarded by learned Tribunal.
Appeal therefore, deserves to be allowed. Hence, following order.
ORDER
1 The appeal is hereby allowed.
2 The Judgment and Award passed by learned Member, Motor
Accident Claims Tribunal, Osmanabad in M.A.C.P. No.112/2012 dated
06.01.2017 is hereby set aside.
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3 The said petition i.e. M.A.C.P. No.112/2012 stands dismissed.
4 The amount, which has been deposited by the appellant, be
refunded to it after the appeal period is over.
5 Pending Civil Application stands disposed of.
6 Respondent No.2 i.e. present appellant is entitled to recover the
amount under No Fault Liability deposited and/or distributed to the
claimants, if any, from the claimants.
7 Parties to bear their own costs of the proceedings.
( Smt. Vibha Kankanwadi, J. )
Donge
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BENCH AT AURANGABAD
FIRST APPEAL NO.606 OF 2019
WITH
CIVIL APPLICATION NO.3025 of 2019
IN FA/606/2019
M/s Shriram Insurance Company Ltd.,
E8 ERIP RIICO Industrial Area, Sitapura
Jaipur – 302 022 (Rajasthan) India.
… Appellant .
… Versus …
1 Vanita wd/o Dhanaji Marekar,
Age 30 yrs., Occ. Household,
2 Atharv Dhanaji Marekar,
Age 8 yrs., Occ. Education,
3 Ankita d/o Dhanaji Marekar,
Age 4 yrs., Occ. Education,
(Nos.2 and 3 are minor and U/G of
their natural mother i.e. respondent No.1)
4 Namdeo Tukaram Kamble,
Age major, Occ. Business,
R/o Deshmukh Galli, Akkalkot,
Tq. Akkalkot, Dist. Solapur
At present Shivganga Nagar,
Patr No.1, Plot No.162,
Nayee Jindagi, Solapur, Dist. Solapur.
5 Ram Shivram Marekar ( dead ),
6 Saraswati w/o Ram Marekar,
Age 50 yrs., Occ. Household,
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Nos.1, 2, 4 and 5 are r/o Lohgaon,
Tq. Tuljapur, Dist. Osmanabad.
… Respondents .
...
Mr. V.N. Upadhye, Advocate for the appellant
Mr. S.B. Choudhari, Advocate for the respondent Nos.1 to 3
...
CORAM : SMT. VIBHA KANKANWADI, J.
th
RESERVED ON : 05 AUGUST, 2019
th
PRONOUNCED ON : 24 SEPTEMBER, 2019
JUDGMENT :
1 Present appeal has been filed by the original respondent No.2
challenging the Judgment and Award passed in M.A.C.P. No.112 of 2012
dated 06.01.2017 by learned Member, Motor Accident Claims Tribunal,
Osmanabad, whereby the petition filed by present respondent Nos.1 to 3
original claimants was allowed.
2 The original claimants had come with a case that they are the
widow and children of one Dhanaji Ram Marekar. Respondent Nos.3 and 4
are the parents of Dhanaji. Dhanaji was proceeding on his motorcycle
bearing No.MH 13/U9013 at about 6.00 p.m. on 27.05.2011 on Solapur
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Naldurg Highway to go to his village Lohgaon. When he was near village
Dhangarwadi, he was dashed by one Tata Magic bearing No.MH 13/B2719,
which had come from opposite direction in high speed. It is stated that the
said accident had taken place due to negligence of Tata Magic driver. Dhanaji
sustained severe injuries and then was admitted to Balwant Hospital, Solapur
where he expired on the next day. Respondent No.1 is the owner of Tata
Magic and the said vehicle was insured with respondent No.2 on the date of
accident. Driver of the said vehicle has been prosecuted by Naldurg police.
It is stated that deceased aged 36 years was an agriculturist as well as had
other sources of income. He was getting Rs.2,00,000/ per year from
agriculture, Rs.1,00,000/ per year from preparation of jaggery and
Rs.6,000/ per month from milk business. The claimants had prayed for
compensation of Rs.10,00,000/ from respondent Nos.1 and 2, jointly and
severally.
3 Respondent Nos.1, 3 and 4 though appeared did not file written
statement.
4 Respondent No.2 insurance company filed written statement and
denied all the averments in the petition. It has been specifically denied that
there was accident between the motorcycle driven by deceased Dhanaji and
Tata Magic, which was owned by respondent No.1 and insured with it on the
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alleged date, time and place. Age, occupation and income of the deceased
has been denied. It has been stated that false offence has been registered
against driver in collusion with the police. Alternative prayer has also been
taken that since there is breach of terms of policy, respondent No.2 cannot be
held responsible for payment of compensation.
5 After the issues were framed, claimants have led oral as well as
documentary evidence. Taking into consideration the said evidence as well
as hearing both sides the learned Member has allowed the petition.
Respondent Nos.1 and 2 have been directed to pay compensation of
Rs.15,77,000/ including No Fault Liability with interest @ 9% per annum
from the date of the petition till actual realization of the entire amount. The
said Judgment and Award has been passed on 06.01.2017 which is now
under challenge in this appeal.
6 Heard learned Advocate Mr. V.N. Upadhye for appellant
insurance company and also perused his written notes of argument. Heard
learned Advocate Mr. S.B. Choudhari for respondent Nos.1 to 3original
claimants. Other respondents though served failed to appear, however, note
has to be taken that respondent No.5, father of deceased Dhanaji, expired
during the pendency of this appeal and it is stated that he is survived only by
respondent No.6.
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7 It has been vehemently submitted on behalf of appellant that the
initial burden to prove the accident and death of Dhanaji in the said accident
is on the shoulders of claimants. The evidence on record would show that
the Tata Magic vehicle, owned by respondent No.1, has been falsely involved.
The accident is stated to have taken place on 27.05.2011, however, the First
Information Report has been lodged belatedly on 21.06.2011 after about 25
days, that too by the brother of the deceased and it has been tried to be
contended, that since he was in grief and his mental condition was not
proper, he could not lodge the report. Merely because the respondent No.1
has not filed written statement, that does not absolve the claimants from
proving the accident. Further, only on the basis of contents of the First
Information Report it cannot be said that the involvement of Tata Magic
owned by respondent No.1 and insured with respondent No.2 has been
proved by the claimants. CW 1 Vanita, who is the widow of the deceased,
was admittedly not with the deceased at the time of accident. The so called
eye witness CW 2 Dipak Lokhande cannot be believed. Taking into
consideration his conduct immediately after the accident, though he states
that he had seen the said accident, he did not inform the fact of accident to
anybody, especially police. Therefore, the collusion between the driver,
owner and the police in showing the involvement of Tata Magic is apparent.
He placed reliance on the following decisions :
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1 Anil and others vs. New India Assurance Co. Ltd. & ors.,
2018 STPL 1205 SC .
2 Bajaj Allianz General Insurance Co. Ltd. vs. Manisha
w/o Lahu Kale and others in First Appeal No.2742 of 2015
decided on 04.09.2018.
3 New India Assurance Company Ltd. vs. Laxman
Dadarao Karpe and others in First Appeal No.2973 of 2013
decided on 28.07.2015.
4 M/s. Shriram General Insurance Company Ltd. vs.
Narayan Nivrutti Bembde and others in First Appeal No.1535
of 2013 decided on 23.01.2014.
5 New India Assurance Company Ltd. vs. Ashalata
Suryakant Patil and others in First Appeal No.2829 of 2015
decided on 04.10.2018.
5 Faridabegum Shaikh Yousuf and others vs. Daulat Khan
Sardar Khan (Dead) through L.Rs. & ors., 2015 STPL 11564
Bombay .
6 M/s. I.C.I.C.I. Lombard Insurance Company Ltd. vs.
Janabai wd/o Dinkarrao Ghorpade and others in First Appeal
No.3333 of 2015 decided on 14.12.2018.
In all these cases, taking into consideration the evidence on
record, the Hon'ble Supreme Court as well as this Court held that the
claimants have failed to discharge even the initial burden cast on them.
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8 It has been further submitted on behalf of the appellant in the
alternative that the quantum has also been wrongly awarded by the learned
Tribunal. Though notional income has been considered in view of absence of
income proof, yet, 50% of the said amount has been awarded towards future
prospect, which is not correct as per the decision of Constitution Bench in
National Insurance Co. Ltd. vs. Pranay Sethi reported in (2017) 16 SCC 680.
He has submitted that it ought to have been 40% and then the non pecuniary
damages should also be at the maximum Rs.70,000/ in view of the decision
in Pranay Sethi . It was also submitted that since the driver of the alleged
offending vehicle was not having valid badge and effective driving licence to
drive the said vehicle, learned Tribunal ought to have held that there was
breach of terms of policy.
9 Per contra, the learned Advocate appearing for the respondents
claimants submitted that the involvement of the vehicle has been proved.
Though there is belated First Information Report, yet, reason has been
mentioned as to why it is belated. It is not in dispute that the driver of the
Tata Magic, owned by respondent No.1, was prosecuted by police. The
inquest panchnama was prepared on 28.05.2011 and in that document it is
specifically stated that deceased was dashed by Tata Magic. Though number
has not been mentioned, yet, the make of the vehicle was definitely
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mentioned. Further, there was no reason to disbelieve the testimony of the
eye witness CW 2 Dipak Lokhande. Therefore, when claimants had
discharged their initial burden to prove the accident and death of Dhanaji in
the said accident, the onus had shifted on the insurance company to disprove
the said fact. However, the insurance company has not led any evidence,
therefore, the Tribunal has rightly held that the said vehicle was involved in
the accident. Further, in order to prove the breach of terms of policy also, no
evidence was led by the insurance company, though a defence was taken that
the driver was not holding badge and was not holding valid and effective
driving licence to drive the said vehicle. The quantum has been rightly
assessed and therefore, it requires no interference.
10 Taking into consideration the points raised in the appeal and at
the time of arguments following points arise for determination; reasons for
the same are as follows.
1 Whether the claimants had proved involvement of Tata
Magic bearing No.MH 13/B2719 in the accident ?
2 Whether there was any breach of terms of policy by
respondent No.1 ?
3 Whether claimants are entitled to get compensation from
respondents ?
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If yes, what would be the quantum ?
R E A S O N S
11 Point No.1 :
As regards the fact of accident is concerned, the initial burden is
always on the claimant/ claimants to prove the same, which includes not
only the involvement of the vehicle but also the manner in which the accident
had taken place, as pleaded in the petition. All those authorities, which have
been relied by the learned Advocate appearing for the appellant, have
reiterated the basic principle as aforesaid i.e. the burden is on the claimants
to prove the accident including the involvement of the vehicle/vehicles. In
First Appeal No.2742 of 2015 (supra) note has been taken of the decision of
Division Bench of this Court in First Appeal No.32 of 2013 decided on
11.07.2013 (Goa Bench), wherein it was held that mere production of police
papers and exhibiting those documents does not dispense the proof of
contents of those documents. It was also held that merely on the basis of
certified copies of First Information Report, Spot Panchnama and other
documents the claimants cannot prove their case. Therefore, it is now
required to be seen, as to whether the evidence adduced in this case fulfills
the criteria.
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12 The First Information Report has been admittedly lodged
belatedly. At this stage itself, note can be taken regarding the ratio in Ravi
v/s. Badrinarayan and others reporting in (2011) 4 SCC 693 that delay in
lodging the FIR, can not be taken as a main ground for rejecting the claim
petition. Here not only the point of delay has been canvased but it is coupled
with noninvolvement and collusion. Therefore, facts and evidence is
required to be scanned taking into consideration these aspects. Informant
Balaji is the brother of deceased and in the First Information Report, which
has been lodged after 25 days of accident (on 21.06.2011), number of Tata
Magic has been given and then it is stated that when he came to know about
the accident, he went to hospital, where Dhanaji was admitted. He had come
to know that two persons from his village viz. Laxman Uttam Kamble and
Mahesh Rangnath Deshmukh had admitted Dhanaji to hospital regarding
details of accident. It appears that Dhanaji was unconscious on that day but
on the next day i.e. on 28.05.2011 he expired at about 1.00 p.m.. It also
appears from the contents of the First Information Report that the police
were calling Balaji, since the date of post mortem and inquest panchnama, to
lodge First Information Report but Balaji had not gone to Police Station. He
has tried to explain that, since he was in grief and his mental condition was
not proper, inspite of messages given he could not lodge the report. The
claimants have not examined Balaji for the reasons best known to them. No
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doubt, he was not eye witness but then he could have thrown light as to why
he had lodged the First Information Report belatedly and no other person
could have lodged the report at any earlier point of time. Interesting point to
be noted is that the inquest panchnama was executed on 28.05.2011 when
Balaji was present. The inquest panchnama Exh.32 only makes a statement
that motorcycle driven by Dhanaji was dashed by Tata Magic. Why First
Information Report was not taken down at that point itself is a question. It
will not be out of place to mention another interesting fact that claimants
have examined CW 2 Dipak Lokhande, whose name is not appearing in
inquest panchnama or in the spot panchnama or even in First Information
Report, but then he say that he had seen the accident. So also, he says that
the accident was witnessed by Laxman Kamble and Mahesh Deshmukh from
his village. Now said Mahesh Deshmukh is, in fact, panch to the inquest
panchnama. Therefore, if he was an eye witness to the incident, why he did
not inform the said fact and ask the police to incorporate the vehicle number
of Tata Magic in the inquest panchnama itself, is also a question.
Conveniently the claimants have kept him out of witness box, for the reasons
best known to them. Therefore, mere mention of Tata Magic in inquest
panchnama will not be sufficient to hold that it was the Tata Magic belonging
to respondent No.1 and insured with respondent No.2 on the date of the
accident.
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13 CW 2 Dipak Lokhande has supported the claimants in respect of
the manner in which the accident took place. He says that he was proceeding
with Laxman Kamble on motorcycle and they had met Dhanaji on road,
thereafter, they all had tea in one Hotel and then Dhanaji proceeded further
and these two persons on one motorcycle were following him. He says that
he had noted the Tata Magic number. He has gone further and said that he
as well as Laxman Kamble intercepted the said jeep, so also, Mahesh
Deshmukh, who had come in bus, which was going from SolapurNaldurg
and all of them had taken Dhanaji to Balwant Hospital, Solapur. In his cross
examination taken by insurance company it can be seen that though this
witness had given the motorcycle number in his affidavitinchief, in cross he
has clearly stated that he will not be able to give the motorcycle numbers of
Dhanaji as well as the motorcycle on which he was proceeding. If the said
motorcycle numbers were not in his memory, then on what basis he was
giving the number of Tata Magic, is a question. Another fact to be noted is
that he says that he had asked the driver of the Tata Magic about his name
and then said driver had told his name to him, yet he has not given the name
of the driver either in his examinationinchief or any other place. He has
conveniently stated that he is unable to remember the same. He was not able
to give the location of the spot, where the accident had taken place. He was
not even able to tell the name of the hospital where he had admitted Dhanaji.
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In clear words he has stated that he did not go to police on his own, either to
lodge complaint or to give statement. He has not come with a case that he
had informed the vehicle number to Balaji at any earlier point of time.
Therefore, taking into consideration his entire evidence, it appears that he is
a got up witness. At the costs of repetition it can be said, that the claimants
have not examined Laxman Kamble and/or Mahesh Deshmukh, whose names
are appearing in First Information Report. First Information Report does not
show name of CW 2 Dipak Lokhande.
14 The spot panchnama has been prepared on 21.06.2011, that
means, after the First Information Report was lodged. In fact, the claimants
ought to have examined the investigating officer also to show as to why even
after getting information regarding death of Dhanaji in vehicular accident on
28.05.2011 itself no offence was tried to be lodged before 21.06.2011 against
the driver of the Tata Magic and no attempt was made to execute spot
panchnama, immediately after the execution of inquest panchnama. Again,
at the costs of repetition, it can be said that when Mahesh Deshmukh, who is
stated to be one of the eye witnesses, was the panch to the inquest
panchnama, he could have shown the spot to the police on that day itself and
the spot panchnama could have executed. Conduct of the police in waiting
for some of the relatives of the deceased to lodge the report is unjustifiable,
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as the criminal law could have been set in motion by anybody. What inquiry
was made by police during the said period of 25 days has not been brought
on record. If persons who had the knowledge about the accident, with the
number of the offending vehicle do not come forward to lodge the report,
then this point is required to be considered, when defence of 'collusion
between the driver and/ Owner of the offending vehicle' raised by the
insurance company is taken. No doubt, the tendency of general public who
witnesses the accident is, not to approach police voluntarily. But in this case,
those persons/ eye witnesses have helped police in preparation of
panchnama; yet did not have a word or disclosure of number of vehicle who
was negligent has created doubt. Therefore, taking into consideration all
these aspects, merely because an offence was registered against the driver of
the vehicle owned by respondent No.1 will not prove the involvement of that
vehicle in the accident. Conclusion has to be drawn under the said facts that
the claimants have failed to prove involvement of Tata Magic bearing No.MH
13/B2719 in the said accident.
15 There is no doubt that Dhanaji expired in vehicular accident but
the burden was on the claimants to prove that the said accident was caused
due to the negligence on the part of the driver of Tata Magic bearing No.MH
13/B2719. Testimony of CW 2 Dipak Lokhande is untrustworthy and the
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claimants have failed to examine the important witnesses, who had seen the
accident. The accident had taken place at about 6.00 p.m. on 27.05.2011,
that means, in the summer season and therefore, there would have been
sufficient light to identify the vehicle as well as note down the number. None
of the eye witnesses had approached the police prior to 21.06.2011 raises
doubt. Hence, I come to the conclusion that the claimants had miserably
failed to discharge the initial burden of proof regarding the involvement of
Tata Magic bearing No.MH 13/B2719. The conclusion drawn by the learned
Tribunal is erroneous in that respect. Hence, the point is answered in the
negative.
16 Point No.2 :
In view of my findings to Point No.1, in fact, this point does not
survive, but in the alternative it will have to be considered. The insurance
company contends that the driver of the Tata Magic was not holding required
badge. It is submitted that it is an admitted position that the driver was not
having proper endorsement to drive public service vehicle. The insurance
company has not adduced any independent witness and tried to rely on the
documents which have been produced by the claimants. The certificate of
registration of the said vehicle shows that it was registered as taxi. The
driving licence of said vehicle was not produced by claimants and there was
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no attempt on the part of the insurance company to examine RTO. When
evidence has not been led it cannot be stated that there is any breach of
terms of policy, point is therefore, answered in the negative.
17 Point No.3 :
Again, when I have already come to the conclusion that the
claimants have failed to prove that Tata Magic owned by respondent No.1
and insured with respondent No.2 was involved in the accident, under such
circumstance, though appeal has not been filed by respondent No. 1, yet,
liability to compensate claimants cannot be fastened against him as well as
the insurance company. The entire claim will have to be dismissed by
allowing this appeal. Under such circumstance, it is not necessary to consider
the alternative submissions made on behalf of appellantinsurance company
regarding excessive amount of compensation awarded by learned Tribunal.
Appeal therefore, deserves to be allowed. Hence, following order.
ORDER
1 The appeal is hereby allowed.
2 The Judgment and Award passed by learned Member, Motor
Accident Claims Tribunal, Osmanabad in M.A.C.P. No.112/2012 dated
06.01.2017 is hereby set aside.
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3 The said petition i.e. M.A.C.P. No.112/2012 stands dismissed.
4 The amount, which has been deposited by the appellant, be
refunded to it after the appeal period is over.
5 Pending Civil Application stands disposed of.
6 Respondent No.2 i.e. present appellant is entitled to recover the
amount under No Fault Liability deposited and/or distributed to the
claimants, if any, from the claimants.
7 Parties to bear their own costs of the proceedings.
( Smt. Vibha Kankanwadi, J. )
Donge
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