High Court
Legal Reasoning
1 FA.999-24 & ors.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 999 OF 2024WITHCIVIL APPLICATION NO.3383 OF 2024IN FA/999/2024Legal 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. VERSUS1.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.WITHFIRST APPEAL NO. 1008 OF 2024WITH CIVIL APPLICATION NO.3404 OF 2024 INFA/1008/2024 WITH WITH CIVIL APPLICATION NO. 8984 OF 2024 INFA/1008/2024Legal 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.
Legal Reasoning
2 FA.999-24 & ors.odt VERSUS1.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/fMr. A. D. Pawar.…CORAM : SHAILESH P. BRAHME, J.RESERVED ON : 16.07.2025PRONOUNCED ON : 31.07.2025.JUDGMENT :- 1.Heard both the sides finally. 2.The insurance company has preferred these two appealschallenging distinct judgments and awards passed by MotorAccident Claims Tribunal, Dhule on 05.12.2023. M.A.C.P.No.409 of 2013 was filed by parents of the deceased Rohit whomet with an accident and succumbed to the injuries. TheTribunal awarded compensation of Rs.32,39,402/- withinterest. M.A.C.P. No.441 of 2014 was filed by injured Mayur 3 FA.999-24 & ors.odtwho was pillion rider. The Tribunal awarded compensation Rs.25,000/-.3.Both the claim petitions are arising out of the self sameaccident. The joint and several liabilities was imposed on theappellant/insurance company. Offence was registered and thepolice papers were placed on record before the Tribunal.Hence, I propose to decide both the appeals by commonjudgment and order. I propose to refer to the parties in FirstAppeal No.1008 of 2024 involving a death claim. 4.Deceased Rohit and injured Mayur were serving as PoliceGuard in Central Prison, Kalva, Thane. They were riding on amotorcycle bearing MH.19-AS-7213. Their two friends whowere following them in a separate vehicle were also working inthe same department as police guards. These four persons hadbeen to Nandra to attend wedding ceremony of their friendSwapnil. After attending marriage ceremony on 16.04.2013 atAkhatwade, Taluka Chopada, these four persons werereturning to Nandra. The motorcycle of the deceased wasgiven dash from behind by goods vehicle. The deceased Rohitand injured Mayur fell in the canal and sustained seriousinjuries. After occurrence of the accident, their twocompanions arrived at the spot who were following them and 4 FA.999-24 & ors.odtlearnt about the accident. The injured were shifted to thehospital. The goods vehicle which gave dash fled from thespot. 5. First Information Report was registered on 19.04.2013at the instance of Walmik Bapu Patil, who was one of thecompanions. In pursuance of that Crime No.89 of 2013 wasregistered with Dharangaon Police Station against offendingunknown vehicle. It is stated in the First Information Reportand the statements recorded by the police that due to rash andnegligent driving of respondent No.3, accident occurred, inwhich, Rohit lost his life and Mayur sustained serious injuries.Thereafter, during the course of investigation, the goodsvehicle was traced who was found to be owned and driven byrespondent No.3. It was insured with the appellant. Astatement of the injured Mayur was recorded on 21.04.2013disclosing that offending vehicle was MH.18-AA-2679. 6.The papers of the investigation are placed on record andexhibited as FIR Exh.23, spot panchnama Exh.24, insurancepolicy cover note Exh.29, inquest panchnama Exh.30, postmortem report Exh.31, statement of the witness Mayur Exh.32,salary certificate of deceased Exh.49 which are relevant. Indeath claim, four witnesses were examined including father of 5 FA.999-24 & ors.odtthe deceased, injured Mayur, Investigating Officer PSI Mr. Kaleand Mr. Gonde from the department. Whereas in the injuryclaim, three witnesses were examined including injured Mayur(P.W.1), PSI Mr. Kale (P.W.2), Medical Practitioner Dr. RajkumarIndrasen Suryawanshi (P.W.3).7.The defence of the appellant was that the offendingvehicle was planted. Considering delay caused in FirstInformation Report and the police papers, it is stated to becollusive claim. Identification of the offending vehicle isseriously disputed. Both the claim petitions filed under Section166 of the Motor Vehicles Act (hereinafter referred to as “Act”for sake of brevity and convenience) are stated to be notmaintainable because it was a matter of hit and run.Appellant/insurance company is stated to have no liability topay the compensation. 8.After considering the pleadings and the material onrecord, it is held by the Tribunal that respondent No.2/driverof the goods vehicle was liable for rash and negligent drivingwhich gave dash to the motorcycle resulting into death of Rohitand injuries to Mayur. The overt act of respondent No.3 is heldto be proved from the police papers and specially the evidenceof injured Mayur who was pillion rider. The income of the 6 FA.999-24 & ors.odtdeceased and injured is held to be proved by oral evidence aswell as salary slips. The medical papers of the injured disclosedthe nature of injuries and the disabilities. Ultimately, Tribunalawarded compensation of Rs.32,39,402/- in death claim andawarded compensation of Rs.25,000/- in injury claim. 9.Learned counsel Mr. Mohit Deshmukh appearing for theappellant/insurance company would submit that the claimpetition is not maintainable under Section 166 of the Act. Itwas a case of hit and run and recourse to Sections 161 and 163should have been taken. It is further submitted that the claimis collusive and fraudulent because the First InformationReport pertains to unidentified offending vehicle. There issuspicion regarding involvement of vehicle which is insuredwith the appellant. There is every reason to infer that its aplanted vehicle. He would further submit that the evidence ofMayur is not reliable. It is impossible that when he was pillionrider and his motorcycle was dragged in the canal, he couldhave seen number of the offending vehicles. It is furthersubmitted that the theory of the claimants regarding thevehicle and the manner in which the accident occurred issuspicious. The entire case of the claimants is unreliable andTribunal committed patent illegality in granting compensation. 7 FA.999-24 & ors.odtHe would further submit that the respondents/claimantsmiserably failed to bring on record the convincing evidenceregarding the involvement of vehicle and the manner in whichaccident took place. It is submitted that the nature of theinjuries on Mayur is incomplete with theory of accident. 10.Per contra, learned counsel Mr. Amol Sawant appearingfor the respondents/claimants supports impugned judgmentsand orders. He would submit that one of the claimants Mayuris a injured person and he has given probable account of theaccident. It is further submitted that the respondents/claimantsdischarged the burden and when onus shifted upon theinsurance company, no evidence was produced. It is furthercontended that the minor discrepancies which are tried to bebrought on record by the appellant regarding the size of thevehicle, the manner in which the accident occurred areimmaterial and inconsequential. It is submitted thatdepositions of P.W.1 and P.W.2 corroborate the claim and rightlyaccepted by the Tribunal. It is further submitted that the theoryof the insurance company that the vehicle was planted ismisplaced because there is oral evidence, police papers and onpreponderance of probabilities, the accident and the liabilitieshave been established. 8 FA.999-24 & ors.odt11.It is further submitted that the delay in lodging FIR hasalso been properly explained. The minor defects in theinvestigation would not vitiate the entitlement of the appellant.It is further pointed out that appellant did not make anycomplaint regarding any fraud or planting of the offendingvehicle. Neither any summons was issued to the driver/ownerof the offending vehicle to lead oral evidence in the Court.Lastly, it is submitted that in case of death claim, father of thedeceased also died and mother is only claimant. Her conditionis very precarious.12.I have considered rival submissions of the parties. Inboth the claim petitions, appellant did not lead any oralevidence. The appellant did not prefer any complaint to thepolice when it entertained suspicion about the fraud orcollusion between the claimants and respondent No.3/ownerof the vehicle. The theory of planting of the vehicle is tried tobe made out from the police papers and the depositions of thewitnesses examined by the claimants. 13.The accident took place on 16.04.2013. First InformationReport was registered on 19.04.2013 at the instance of Walmikwho is also one of the companions with the deceased and theinjured/claimant. Deceased Rohit succumbed to the injuries 9 FA.999-24 & ors.odtimmediately after the accident and Mayur was badly injuredand he was shifted to the hospital. He was continuously undermedication. He was required to taken to Ganpati Hospital atJalgaon and thereafter shifted at Wacche Hospital, Solapur. Ingiven facts and circumstances filing of First Information Reporton 19.04.2013 cannot be said to be unnatural. The claimantswere under trauma and they as well as their companions werenot expected to lodge First Information Report. The objectionof the learned counsel for delay in lodging FIR holds no merit. 14.Learned counsel for respondents rightly cited judgmentof Ravi Vs. Badrinarayan and others ; (2011) 4 Supreme CourtCases 693 of which the following paragraphs are guiding :“17.It is well settled that delay in lodging the FIR cannotbe a ground to doubt the claimant's case. Knowing theIndian conditions as they are, we cannot expect a commonman to first rush to the Police Station immediately after anaccident. Human nature and family responsibilities occupythe mind of kith and kin to such an extent that they givemore importance to get the victim treated rather than torush to the Police Station. Under such circumstances, theyare not expected to act mechanically with promptitude inlodging the FIR with the Police. Delay in lodging the FIRthus, cannot be the ground to deny justice to the victim.18.In cases of delay, the courts are required to examinethe evidence with a closer scrutiny and in doing so thecontents of the FIR should also be scrutinized morecarefully. If the court finds that there is no indication of 10 FA.999-24 & ors.odtfabrication or it has not been concocted or engineered toimplicate innocent persons then, even if there is a delay inlodging the FIR, the claim case cannot be dismissed merelyon that ground. The purpose of lodging the FIR in such typeof cases is primarily to intimate the police to initiateinvestigation of criminal offences.19.Lodging of FIR certainly proves factum of accident sothat the victim is able to lodge a case for compensation butdelay in doing so cannot be the main ground for rejectingthe claim petition. In other words, although lodging of FIRis vital in deciding motor accident claim cases, delay inlodging the same should not be treated as fatal for suchproceedings, if claimant has been able to demonstratesatisfactory and cogent reasons for it. There could bevariety of reasons in genuine cases for delayed lodgment ofFIR. Unless kith and kin of the victim are able to regain acertain level of tranquility of mind and are composed tolodge it, even if, there is delay, the same deserves to becondoned. In such circumstances, the authenticity of theFIR assumes much more significance than delay in lodgingthereof supported by cogent reasons.”15.Respondents have rightly placed reliance on thejudgment of National Insurance Company Ltd., Khamgaon Vs.Sharda Raju Waghmare and others ; 2017 (2) Mh.L.J. 917. Inthat case, two motorcycles collided and the deceasedsuccumbed to the injuries. FIR was lodged after six days. Inthat context, following observations are made :“12.This F.I.R. also discloses that the informant was notan eye witness to the accident. The claimant's witness, CW1 Sharda, widow of the deceased was not an eye witness 11 FA.999-24 & ors.odteither. It is natural also as the deceased was admittedlyriding the motorcycle all alone. The information of theinformant or the claimants witness in such cases would bedependent upon what they are told about the accident bythe person who had seen the accident or the Police whoregistered offences on the basis of the information receivedabout commission of offences and proceeded further in thematter. Such witnesses of the claimants are not expected tohave personal information of the accident. Therefore, theburden to prove the occurrence of the accident and theprobable cause behind it lying upon the shoulders of theclaimants would be of limited nature and it would come toan end the moment the claimants succeed in establishingthe facts on the basis of the Police record and otherattending circumstances, that a particular vehicle is theoffending one and its rider or driver was rash and negligentin using that vehicle. After these facts are established in thisway, the burden would shift upon the party which deniesthe claim.”16.It is stated in the First Information Report that a goodsvehicle is the offending vehicle and the number was not knownto the informant. In the statement of Mayur recorded on21.04.2013, it is stated to be small vehicle bearing registrationNo.MH-18/AA-2679 which gave dash from behind and whichwas being driven rashly and negligently by respondent No.3who happened to be the driver as well as owner. The spotpanchnama at Exh.24 also shows that a goods vehicle ofunknown number was involved in the accident. Thereafter, myattention is adverted to affidavit in lieu of examination-in-chief 12 FA.999-24 & ors.odtof P.W.2 Mayur who stated that a small goods vehicle gave dashfrom behind and deceased and himself fell in canal which is 20feet away from the spot of the incident. I have gone throughcross-examination of the said witness. 17.I find that there is a post mortem report, injurycertificate of deceased Mayur. Undisputedly, Mayur washospitalized and under medication at different places. Thepolice papers and the oral evidence brought on record aresufficient to disclose that accident took place on 16.04.2013and Rohit succumbed to the injuries whereas Mayur sustainedserious injuries. I find that on the preponderance ofprobabilities, the claimants have made out case that theirmotorcycle was given dash from behind which was the causefor the accident. The claimants have discharged their initialburden and onus shifted on the insurance company. Theappellant/insurance company did not lead any oral evidence.18.Learned counsel for the appellant tried to show thediscrepancies from the First Information Report, spotpanchnama and statement of Mayur recorded on 21.04.2013.The description of the vehicle varies in these documents. Theinsurance cover note at Exh.29 shows that the vehicle wasmake of Tata Motors (Chhota Hatti). I am of the considered 13 FA.999-24 & ors.odtview that the nature of the vehicle whether it was a goodsvehicle or small goods vehicle would make very littledifference. There is absolutely no evidence to corroborate theplea of appellant. The witnesses who deposed before Court didnot shatter in the cross-examination. Though initially theregistration number and the owner of the offending vehiclewas not disclosed that would not make claim of therespondents unreliable. 19.There is every reason to infer that Mayur washospitalized and he was not in a position to make anystatement and the claimants in the death claim might havebeen under terrible trauma due to the sudden death of theirson. Hence, belated disclosure of the offending vehicle is notdetrimental to the claim. On the contrary, cogent circumstancesare brought on record for not mentioning details of theoffending vehicle. 20.It has been brought on record that P.W.2 Mayur was apillion rider and when dash was given, motorcycle was thrownin the canal which is of 20 feet deep. He is stated to haveseen the registration number of the offending vehicle at thetime of falling in the ditch. Learned counsel Mr. MohitDeshmukh has forcefully tried to convince this Court that it 14 FA.999-24 & ors.odtwas not possible for anybody who was dashed to have seen thenumber when the level of the canal is much lower than thelevel of the road. I find that the submission is attractive but inabsence of any evidence being led by the appellant/insurancecompany, it cannot be said that testimony of Mayur isunreliable. The claims are decided on the preponderance ofprobabilities and the principles of the criminal jurisdiction thatproof beyond reasonable doubt cannot be made applicable. Iam not prepared to accept the submissions of learned counselfor the appellant.21.Reliance is placed on the judgment of Anita Sharma andothers Vs. New India Assurance Company ; (2021) 1 SupremeCourt Cases 71. The parameters for assessing evidence and thestandard of proof are laid down by the Apex Court in followingwords :“21.Equally, we are concerned over the failure of theHigh Court to be cognizant of the fact that strict principlesof evidence and standards of proof like in a criminal trialare inapplicable in MACT claim cases. The standard of proofin such like matters is one of preponderance ofprobabilities, rather than beyond reasonable doubt. Oneneeds to be mindful that the approach and role of courtswhile examining evidence in accident claim cases ought notto be to find fault with non-examination of some besteyewitnesses, as may happen in a criminal trial; but, insteadshould be only to analyse the material placed on record by 15 FA.999-24 & ors.odtthe parties to ascertain whether the claimant’s version ismore likely than not true.”22.I am, therefore, fortified in holding that applying thesame parameters in the case at hand it has to be held that rashand negligent driving and involvement of the vehicle areproved.23.Learned counsel Mr. Mohit Deshmukh has also pointedout that the seizure panchnama has not been produced. Thereare defects in the investigation and ultimately the prosecutionended in the acquittal. The defect in the investigation andacquittal in the criminal case would not be the circumstancesto outlaw the theory of the appellant. Appellant/insurancecompany has not discharged the onus. The discharge summarypointed out by counsel for appellant would not take the caseany further. I find no fault in the findings recorded by theTribunal.24.Mr. Mohit Deshmukh, learned counsel for the appellantrelied on the judgment in case of Anil and others Vs. NewIndia Assurance Company ; (2018) 2 Supreme Court Cases482 to buttress that conduct of not registering offencepromptly after the accident is relevant. In that case, the offencewas registered after one month. The person who died was thebrother of the owner of the tractor. The proper medical record 16 FA.999-24 & ors.odtwas also not made available. Hence, the award ofcompensation was found to be perverse by the High Court.The judgment of the High Court was confirmed by theSupreme Court. Facts are distinguishable from the case athand. P.W.2 Mayur is the eye witness in the present case. Thisjudgment would not enure to the benefit of the appellant. 25.Further reliance is placed in the matter of KalpanaRajendra Kothari and others Vs. Santosh Arvind Jangam andanother ; (2020) 2 Mah.L.J. 561. In that case also, there wasbelated registration of First Information Report and the burdenwas held to be on the claimant to prove the accident includinginvolvement of the vehicle. In that case also, informant wasthe eye witness, but he did not step into witness box. The factsof the case at hand are different. Eye witness has beenexamined and the police papers corroborate claimants case indischarging the burden. This judgment will not help theappellant. 26.Further reliance is placed on the judgment of the UnitedIndia Insurance Company Ltd. Vs. Dattarao MadhavraoDehmukh and others. In peculiar facts and circumstances ofthis case it was held that eye witness was not reliable and itwas held that there was no cogent evidence to suggest 17 FA.999-24 & ors.odtinvolvement of the offending vehicle. Again the facts aredistinguishable and the judgment will not help the appellant. 27.Learned counsel for the appellant has also tried to advertmy attention to the nature of injuries and the manner in whichthe accident occurred. I find that these submissions are notsufficient to hold that it was a collusive claim and the vehiclewas planted. There is sufficient evidence to support theaccident and rash and negligent driving by respondent No.3. Itis rightly submitted by Mr. Amol Sawant, for respondents thatthe insurance company could have adduced the evidence ofdriver/owner of the offending vehicle or could havecomplained in respect of any fraud or planting of the offendingvehicle. 28.It is further submitted that the independent witnesseswere available but not examined by the claimants. It cannot belost sight of that the claimants were not from the same vicinity.After occurrence of the accident, people gathered but evenduring investigation, no eye witnesses were found. The injuredMayur was the person who can be treated to be eye witnessbecause he was pillion rider on the motorcycle which wasdashed by the offending vehicle. The material brought onrecord is sufficient to make out a case for the appellant on 18 FA.999-24 & ors.odtpreponderance of probabilities. Therefore, this submission alsocannot be accepted. 29.Respondent placed reliance on judgment of Geeta Dubeyand others Vs. United India Insurance Co. Ltd and others ; AIR2025 Supreme Court 386 to demonstrate as to what would bethe standard of proof. In that case, a car was given dash by atruck and the deceased was travelling in the car. FIR did notmention particular of the vehicle or time of the accident. It wasstated to be unknown truck that had hit the car. In the abovecontext, following observations are relevant :“20. Firstly, it is well settled that in claim cases, in case theaccident is disputed or the involvement of the vehicleconcerned is put in issue, the claimant is only expected toprove the same on a preponderance of probability and notbeyond reasonable doubt. [See Sajeena Ikhbal and Others,V. Mini Babu George and Others, (2024) SCC OnLine SC2883]. We also deem it appropriate to extract the followingparagraphs from the judgment of this Court in Bimla Devi &Ors. V. Himachal Road Transport Corporation & Ors.,(2009) 13 SCC 530. Repelling similar contentions raisedchallenging the accident and the involvement of the vehiclein question, this Court held as follows :"14. Some discrepancies in the evidence of theclaimant's witnesses might have occurred but the corequestion before the Tribunal and consequently beforethe High Court was as to whether the bus in questionwas involved in the accident or not. For the purpose ofdetermining the said issue, the Court was required to 19 FA.999-24 & ors.odtapply the principle underlying the burden of proof interms of the provisions of Section 106 of the EvidenceAct, 1872 as to whether a dead body wrapped in ablanket had been found at the spot at such an earlyhour, which was required to be proved by Respondents2 and 3.15. In a situation of this nature, the Tribunal has rightlytaken a holistic view of the matter. It was necessary tobe borne in mind that strict proof of an accident causedby a particular bus in a particular manner may not bepossible to be done by the claimants. The claimantswere merely to establish their case on the touchstone ofpreponderance of probability. The standard of proofbeyond reasonable doubt could not have been applied.For the said purpose, the High Court should have takeninto consideration the respective stories set forth byboth the parties.16. The judgment of the High Court to a great extent isbased on conjectures and surmises. While holding thatthe police might have implicated the respondents, noreason has been assigned in support thereof. Nomaterial brought on record has been referred to for thesaid purpose.””30.In the above matters, Apex Court found that theoffending vehicle was found to be involved in the accident. Forarriving at those conclusions various factors enumerated inparagraph No.21 were considered. Out of them, last twofactors which are as follows would help this Court.“21.Secondly, applying the test of preponderance ofprobability, we find that the claimants have establishedtheir case that it was the truck bearing registration no. MP- 20 FA.999-24 & ors.odt19-HA-1197 which was involved in the accident with carbearing no. MP-19-CB-5879 wherein the deceased wastravelling. We say so for the following reasons:-a.…..b.…..c.…..d.…..e.…..f.…..h.The insurance company examined Op.W.-1 RajKumar Kachhwah who admitted that till the date of hisdeposition, no information or complaint was given to thesenior police officers stating that an attempt is being madeby the claimants and the owner and driver of the vehicle towrongly include the vehicle bearing No. MP-19-HA-1197 inthe case. The witness also admitted that no steps to cancelthe investigation of the police has been taken and noenquiry has been done into the veracity of the claim.i.The MACT, on appreciation of the overallconspectus, particularly impressed by the fact that theinsurance company did not lodge any complaint of collusionand about the involvement of the truck in an illegal mannerconcluded that it was truck bearing registration no. MP-19-HA-1197 which hit the car bearing no. MP-19-CB-5879from behind.”31.In the case at hand also, appellant/insurance companythough 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 seriouslydispute the material on record regarding quantum arrived at
Decision
21 FA.999-24 & ors.odtby the Tribunal. I find that there is no reason to cause anyinterference in the impugned judgments and orders. I,therefore, pass following order : O R D E R(i)First Appeals are dismissed.(ii)There shall be no order as to costs. (iii)The amount deposited in this Court with accruedinterest shall be disbursed to respondents/claimants.(iv)Pending civil applications are disposed ofaccordingly. (SHAILESH P. BRAHME, J.)...vmk/-