High Court · 2025
Facts
(1)fa21.23IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 21 OF 2023WITH CA/352/2023 & CA/5190/2023 New India Assurance Co. Ltd...APPELLANTThrough its Divisional Manager,Ajay Engg. Compound, Adalat Road,Kranti Chowk, Aurangabad,District – Aurangabad.Through its Authorized Officer (Orig. Respondent No.2)VERSUS1] Shobhabai W/o Sheshrao Warkad...RESPONDENTSAge : 52 years, Occu. Household,R/o. Gawaliwada, Daulatabad,Taluka & Dist. Aurangabad.2] Gajarabai W/o Laxman WarkadAge : 84 years, Occu. Household,R/o. As above. ..Orig. claimants3] Appasaheb Sheshrao WarkadAge :45 years, Occu. Business,R/o. As above. ..RESPONDENTSMr. Swapnil S. Rathi, Advocate for the appellant Mr. Ravindra V. Gore, Advocate for the respondent Nos. 1 and 2CORAM:KISHORE C. SANT, J.RESERVED ON:22-11-2024PRONOUNCED ON:22-01-20251 of 14 (2)fa21.23P. C. 1. This appeal is by the insurer challenging thejudgment and award passed by the learned Member, MACT,Aurangabad in MACP No.329/2019. Respondent Nos. 1 and 2are the original claimants-parents of the deceased. RespondentNo.3 is the owner of the vehicle allegedly involved in anaccident in which the deceased died, he also happens to bebrother of the deceased. The learned tribunal has partly allowedthe claim petition and directed the present appellant andrespondent No.3 to jointly and severally pay an amount ofRs.9,77,200/- alongwith interest @ 6.5 p.a. from the date ofapplication.2.Facts in short are as below:a]That on 29-12-2018 the deceased was working on a brickkiln in the field near heap of soil. At around 03.30 pm to 04.00pm another brother of the deceased was driving the vehicle. Hetook the vehicle in reverse. While taking vehicle in reverse hedashed heap of the soil. The soil fell on the deceased due to2 of 14 (3)fa21.23which the deceased Sunil died. Respondent No.3 was engaged inthe business of brick-kiln. The deceased was brought to theCIGMA hospital at Aurangabad. There he was declared dead.The MLC was sent to the Jawahar Nagar Police Station. Initiallythough MLC was registered, thereafter enquiry was handed overon 19-01-2019 to the Khultabad Police Station. One Ganeshthereafter gave information to the police and on the basis ofstatement a crime came to be registered bearing No. 26/02-019.b]The claimants filed a claim petition stating that theaccident took place due to vehicular accident which was insuredwith the present appellant. The deceased was earningRs.15,000/- per month. The deceased and the owner of thevehicle and his brother were residing separately. c]The defense of the appellant was about the income of thedeceased. It is further defense that the deceased did not die invehicular accident. The claim is filed with collusion withrespondent No. 3 and theory is developed that the deceased died3 of 14 (4)fa21.23because of the dash given by the vehicle to the heap of the soil. d]The learned tribunal held that the deceased died invehicular accident. The notional income of the deceased is heldto be Rs.6000/-. By applying multiplier of 18 the award came tobe passed. Thus, the appellant is before this court. 3.This court has perused the record and proceeding. 4.Mr. Rathi, the learned advocate vehemently arguedthe appeal. In a statement of another brother namely Dadasahebit is clearly stated that the deceased was working on the brick-kiln and while working, the heap of soil fallen on him. Even inthe AD registered at Jawahar Nagar Police Station, it wasrecorded that the deceased died because of falling of the soil onhis person. For the first time on 24-01-2019 Ganesh who wasworking as coworker with the deceased lodged the report. It isstated that because of the dash given by the vehicle, heap of soilfall on the person of the deceased. He thus submits that till that4 of 14
Legal Reasoning
(11)fa21.23held that all these circumstances create doubts and in that viewthe appeal of the insurance company was allowed. In the case ofNew India Assurance Co. Ltd. (supra) this court held that unlessthere is material in the investigation papers to connect theoffending vehicle with the death of the deceased then noconclusion can be drawn, that merely because of filing of thecharge-sheet against the driver that the offending vehicle wasinvolved in the accident. There has to be some prima faciematerial to show the involvement of the offending vehicle in theaccident and the appeal of the insurance company was allowed.10.So far as the judgment relied upon by therespondents are concerned in the case of Janabai Wd/o.Dinkarrao Ghorpade (supra) owner of the vehicle had appearedas witness and admitted that vehicle was involved. It was heldthat no strict proof is required in the case under M. V. Act asrequired in criminal trial while deciding the application underSection 166. The proceeding under Section 166 of the M. V. Actis summary in nature and held that to prove the accident no11 of 14 (12)fa21.23strict proof is required. In the case of Sajeena Ikhbal and others(supra), the tribunal had disbelieved the eye witness. For thereasons that in the investigation, this eye witness was notexamined, who deposed about the involvement of the car in theaccident. There was abundant evidence available pointing outthe fact of involvement of the car. The Hon’ble Apex Court inthat case set aside the findings of the tribunal and the high courtso far as the non involvement of the car in an accident. It washeld that the deceased died as a result of the accident.11.Considering the judgments this court finds that thejudgments relied upon by the appellant are on the pointsinvolved in this case whereas the judgments of the respondentsare not on the points. From the nature of the evidence in thiscase, it is clearly seen that there is nothing on record to connectthe vehicle with an accident except the statement that wasrecorded much after the incident. Conspicuous silence of boththe brothers of the deceased including the owner of the vehicle-respondent No. 3 speaks volums. When brothers have12 of 14 (13)fa21.23knowledge, it is the question as to why they could not speakupand inform this fact to the police. The learned Member expectedthe insurance company to prove the non-involvement of thevehicle in an accident. This court finds that no such burdencould have been placed upon the insurance company. It wasnecessary for the claimants to at least prima facie show theinvolvement of the vehicle. The panchanama was drawn muchafter the incident and naturally is not sufficient to prove theinvolvement of the vehicle. For all these reasons, this court ispersuaded to hold that there is no material on record to showthe involvement of the vehicle alleged. The learned Member ofthe tribunal has thus committed mistake in holding theinsurance company liable for compensation and in allowing theclaim petition. Therefore, impugned order deserves to be setaside. Thus, the impugned judgment and award stands quashedand set aside. No order as to costs. [KISHORE C. SANT, J.]13 of 14 (14)fa21.23LATER ON:1.The learned advocate for the appellant submits thatentire amount is deposited in the office of this court in view oforder dated 11-01-2023.2.Office to refund the said amount to the insurancecompany alongwith accrued interest.3.In view of disposal of the First Appeal, pending civilapplications do not survive and disposed off.[KISHORE C. SANT, J.]VishalK/fa21.2314 of 14
Arguments
(5)fa21.23date no involvement is shown of any vehicle. Even brotherDadasaheb did not make any reference to the vehicle. On 29-01-2019 the statement of Appasaheb was recorded. At that time hementioned about the involvement of the vehicle. He thussubmits that entire case is concocted, just to claim thecompensation, now the theory is invented. The spotpanchanama does not record any tire marks of the vehicle. It ismentioned that heap of soil was 20 feet high. The saidpanchanama was drawn on 24-01-2019. The learned courtbelow failed to appreciate the defense of the insurance company.The learned Member of the tribunal has placed the burden toprove the fact on the insurance company. No negative burdencould have been placed upon the appellant. Findings recorded isperverse etc. 5.The learned advocate for the appellant relies uponthe judgment reported in 2018 SC AIR 612 in the case of Aniland others Vs New India Assurance Co.Ltd. and others and 2019DGLS (Bom) 865 in the case of Shriram Insurance Company5 of 14 (6)fa21.23Ltd. Vs Vanita Dhanaji Marekar and others and on the judgmentof this court in the appeal No. 2829/2015 in the case of NewIndia Assurance Co. Ltd. and others Vs Ashalata Suryakant Patiland others and prays to allow the appeal. 6.Mr. Gore, learned advocate for the respondentvehemently opposed the appeal. He submits that the statementof the Dadasaheb was hearsay and therefore, need not be reliedupon. Whereas the statement of the Ganesh needs to be reliedupon, as he was the witness to the incident. Till the time Ganeshmade a statement no enquiry was made with him and thereforethere was no occasion for him to give any statement. Thestatement was recorded during the course of the investigation ofthe AD. Considering the object of section 166 of the M. V. Act thecourt has to consider preponderance of probabilities. The courthas rightly drawn the conclusion. The Statement of Dadadashebrecorded at Exh.33 was hearsay evidence and therefore, cannotbe relied upon. There is delay in lodging the FIR that by itselfcannot be a reason to disbelieve the story. The learned trial court6 of 14 (7)fa21.23has summoned Investigating Officer. However, the insurancecompany could not secure his presence. The insurance companycould have examined the Investigation Officer in support of theirdefense. He submits that story of falling of the heap of the soil isconsistent and there is nothing on record to disbelieve the saidstory. He relied upon the judgment reported in (2022) 10 SCC512 Janabai Wd./o. Dinkarrao Ghorpade and others Vs ICICILomabard Insurance Company Ltd., 2024 SCC Online SC 2883in the case of Sajeena Ikhbal and others Vs Mini Babu Georgeand others. He submits that the learned trial court has rightlyappreciated the evidence on record and has allowed the claimpetition. No interference is called for. Thus, he prays fordismissal of the appeal.7.The facts which are not disputed are that thedeceased died due to fall of heap of soil. He was immediatelyshifted to Hospital at Aurangabad. On the basis of informationreceived by the police, at Jawahar Nagar Police Station, lodgedthe AD and subsequently transferred to Khultabad Police7 of 14 (8)fa21.23Station. In the AD what is stated is only that deceased died dueto fall of heap of soil on him. It is only during the course of theinvestigation of the AD, the statement of the Ganesh came to berecorded, who for the first time, stated to the police that whenhe himself and the deceased were working near the heap of thesoil on the brick-kiln, one vehicle gave dash while coming inreverse direction to the heap of the soil and in that incident thedeceased died. Till the date of recording statement of Ganeshthere is no involvement of any vehicle shown. The earlierstatement was of brother. He did not mention of involvement ofany vehicle, even respondent No. 3 did not make any suchstatement before the police, even he made a statement for thefirst time on 29-01-2019. The submission of Mr. Rathi is thuscorrect to the extent that for the first time involvement of thevehicle was mentioned in the statement of Ganesh on 24-01-2019 at Exh.22. A question naturally comes as to why both thebrothers did not mention the involvement of the vehicle. Ganeshwas cross examined. The suggestions are put to the Ganesh thatsoil fallen on the person of the deceased when they both were8 of 14 (9)fa21.23digging soil. The said suggestion is denied. He accepted that hedid not go to the police station for recording the statement. Healso denied that he did not see the incident and he is deposingfalse. So far as the evidence of respondent No.1 is concerned, itis only in respect of her dependency, about the income etc. Theinsurance company has not examined any witnesses in supportof its case.8.While considering the judgment this court finds thatthe learned tribunal dealt with the submissions of the insurancecompany. So far as the delay is concerned, the court held that asthere was death in the family they could not immediately lodgethe complaint. About Ganesh it is held that no complaint couldbe lodged immediately. His statement was not recordedimmediately. That itself would not be fatal to the case of theclaimants. The delay in lodging the report or lodging the FIRwould not be material. So far as the judgment in the case of Aniland others (supra) the Hon’ble Apex Court considered that inthat case the High Court had noted various disturbing facts from9 of 14 (10)fa21.23the case of complainant. In that case no postmortem wasconducted. There was delay in lodging the FIR of more than onemonth. The evidence of the driver was totally unbelievable inview of the contrary statements, it was held that there wasnothing to show that the person died in an accident. One fact issimilar in that case that brother of the owner only died in anaccident and no compliant was lodged for nearly one month.Nature of injuries as per the hospital record did not suggest thatdeath occurred due to accident and in that view it was held thathigh court had rightly set aside the award.9.In the case of Shriram Insurance Co. Ltd. (supra) thiscourt had considered the factors like delay in lodging thecomplaint. The complainants had failed to cross-examine theInvestigating Officer as no panchanama was drawn immediately.In that case the accident took place on 27-05-2011 and thepanchanama was prepared on 21-06-2011. No offence wasimmediately lodged against the driver of the vehicle. The eyewitness did not show the spot immediately to the police. It was10 of 14