High Court
Facts
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 1568 OF 2012The New India Assurance Company Ltd.Through its Divisional Manager,Adalat Road, Aurangabad …. APPELLANT(Org. Opp. No.1)VERSUS1.Ahmedabee Nazir ShaikhAge : 43 years, Occupation : Household2.Shaikh Jakir Shaikh NazirAge : 19 years, Occupation : Student3.Shaikh Shakir Shaikh NazirAge : 17 years, Occupation : Student4.Shaikh Sameer Shaikh NazirAge : 15 years, Occupation : Student5.Shaikh Rubina Shaikh NazirAge : 13 years, Occupation : Student6.Shaikh Javed Shaikh NazirAge : 11 years, Occupation : Student7.Shaikh Naseer Shaikh NazirAge : 9 years, Occupation : Student(Nos.3 to 7 Since minor, Hence under Guardianship of Their mother Respondent No.1)All residents of : At Sompuri, Taluka Paithan, Dist. Aurangabad8.Surender Singh Rajsingh ShekhavatAge : Major, Occupation :Resident of : Quarter No. 114, Security Colony,Bajaj Nagar, Aurangabad9.Machindra IndapurAge : Major, Occupation : NilResident of : At Ranjangaon Khuri,wp 1568.12(ch).odt1 of 7
Legal Reasoning
suggestion made to the witness that his deposition is incorrect. Thisevidence get further support from the cross-examination of claimantNo.1 wherein it was brought on record that at present the milk businessis not done and some of the buffalo have died. This suggestion indicatesthat the during the lifetime deceased was having buffalo and milkbusiness was done. Claimant No.1 has also claimed about deceasedworking in the agricultural filed. In the light of this evidence, theTribunal has held that the deceased was earning Rs.6500/- per month.There is no dispute made by the Appellant with regard to the methodadopted by the Tribunal for arriving at the contempt of compensation.9.The owner and insurer of offending vehicle have not led anyevidence and as such defences sought to be taken by them are notsubstantiated before Tribunal. For want of any evidence challengesought to be made against impugned award must fail. 10.Having regard to the afore stated facts, this Court finds nocase being made out for causing interference in the impugned order. Asa result of the above discussion, Appeal stands dismissed.(R. M. JOSHI, J.)sspwp 1568.12(ch).odt7 of 7
Arguments
Taluka Paithan, District Aurangabad10.Devanand Totaram Gadhave(As per order dated 29/04/2014, Res. No.10 dismissed)… RESPONDENTS(Nos.1 to 7 – Claimants/Nos.8 to 10- Respondents)Mr. M. R. Deshmukh, Advocate for the AppellantMr. S. S. Munde, Advocate for Respondent Nos.3 and 4Mr. Shaikh Faruk V. Patel, Advocate for Respondent Nos. 6 and 7Mr. A. R. Kawade, Advocate for Respondent No.7Mr. A. R. Naik, Advocate for Respondent No.9.CORAM: R. M. JOSHI, J.DATE: 10th OCTOBER, 2025JUDGMENT :-1.This Appeal filed by the Insurer under Section 173 of MotorVehicle Act, 1988 (for short “the Act”) takes exception to the judgmentand award dated 23/12/2011 passed in MACP. No. 08/2010.2.The facts which led to the filling of this appeal can benarrated in brief as under:-(i)It is the case of the claimant that deceased claimant wasdriving a motorcycle from Bidkin to Sompuri on 26/08/2009. A Tempo709 bearing No. MH-24-A-2068, near the ITI institute at Bidkin Shivar,came from the opposite direction collided with deceased claimant at7.30 pm, being driven rashly and negligently by the driver of saidvehicle. Due to said accident, claimant sustained serious injuries andsuccumbed to injuries. The legal representatives of the claimant seekwp 1568.12(ch).odt2 of 7 compensation for the deceased claimant. Deceased was 45 years old atthe time of the accident, was in good health, and was earningRs.10,000/- per month from agriculture work and milk business.Deceased claimant was agriculturist having land Gut No. 23admeasuring 3 Acres and Gut No. 22 admeasuring 89 R, so also he wasin the business of selling approximately 8 to 10 liters of milk per day. Atotal compensation amounting to Rs.6,00,000/- is sought under variousheads so also interest is claimed on the amount of compensation @18% p.a. from the date of accident.(ii)Insurer filed written statement at Exhibit 17 asserting theoffending vehicle Tempo No. MH-24-A-2068, is insured with theappellant/insurer. The owner of the offending vehicle, filed his writtenstatement at Exhibit 24, contending that he is not the registered ownerof the offending vehicle and that he sold the vehicle to owner ofinsurance, whose name was registered as the owner of offendingvehicle at the date of the accident. Driver of the tempo filed writtenstatement at Exhibit 23 resisting the claim by denying that the accidenttook place due to his rash and negligent driving of vehicle. (iii)Issues were framed by the Tribunal at Exhibit 25. Thedeceased claimants, have examined two witnesses in support theircase, namely Ahmedabee, (PW 1) at Exh. 26 and Kalyan as (PW 2) atExh. 39. Both witnesses place the following documentary evidence onwp 1568.12(ch).odt3 of 7 record to substantiate their claim: copies of the FIR (Exh. 30), SpotPanchnama (Exh. 31), Inquest Panchanama (Exh. 32), Post MortemReport (Exh. 33), the registration of the TATA Tempo 709 (Exh. 35),compensation form “AA” (Exh. 36), 7/12 extracts of land Gut No. 23(Exh. 37) and Gut No. 22 (Exh. 38), and a certificate showing income ofdeceased/claimant from selling milk (Exh. 40). The tribunal takingcognizance of all the facts and evidence on record led before it allowedthe deceased claimants claim holding insurer, owner of insurance policy,and driver of offending vehicle to jointly and severally to pay a totalcompensation of Rs.8,85,600/-, inclusive of the amount of no faultliability, with interest @ 9% p.a. from the date 23/12/2009 till itsrealisation to the deceased claimant. Being aggrieved by the saidaward, the Insurer has preferred this Appeal. 3.Learned Counsel for the Insurer submits that Nazir Shaikhwas driving the motorcycle without following traffic rules and norms andwas not wearing a helmet. He rode the motorcycle with two otherpersons not wearing helmet which accordingly becomes the reason forthe accident and his death. Reference is made in this regard to SpotPanchanama. He argued that no intimation is given to Insurer regardingthe transfer of vehicle to owner of offending vehicle and hence insurer isabsolved from payment of compensation. According to him the Tribunalcommitted error in passing the impugned Award by ignoring thewp 1568.12(ch).odt4 of 7 contributory negligence of both parties in the occurrence of theaccident. On these amongst other contentions he seeks setting aside ofimpugned award. Learned Counsel for the insurer to support his claimsrelies upon the judgments passed by Hon’ble Supreme Court in LaxmiDevi and others v/s Mohammad Tabbar and another, (2008) 12 SCC165 and Ramchandrappa v/s Manager Royal Sundaram AllianceInsurance Company Limited, (2011) 13 SCC 236.4.Learned Counsel for the claimants supported the impugnedaward.5.Record indicates that claimants examined two witnesses i.e.claimant No.1 Ahmeda Bee at Exhibit 26 and Kalyan, Secretary ofGodawari Co-operative Milk Society, Bidkin (Exhibit 39). In addition tothe oral evidence, claimants place reliance on the FIR, spotpanchanama, inquest panchanama, PM report, copy of registration andinsurance policy of Tempo and 7/12 extract of Gut Nos. 22 and 23. Acertificate issued by the Milk Society was also relied upon tosubstantiate the income of the deceased.6.Claimant No.1 deposed about the occurrence of the accidentand the death of the deceased in the same on the basis of the policepapers. Though it has come on record that she has not witness theactual occurrence of the accident, the police papers and morewp 1568.12(ch).odt5 of 7 particularly spot panchanama clearly indicate that the rider of themotorcycle i.e. deceased was riding his vehicle from the correct side ofthe road. The perusal of the spot panchanama leaves no room for doubtthat the accident in question has occurred on account of the negligenceof the driver of the Tempo. Once such evidence is led by the claimants,the burden shifts upon the owner and insurer to prove otherwise.Admittedly, no evidence was led on their behalf before the Tribunal.Thus, on the basis of the evidence on record this Court finds nohesitation to hold that the accident has occurred solely due to thenegligence of the driver of Tempo.7.There is oral as well as documentary evidence on record toindicate that in the said accident deceased sustained grievous injuriesand scummed thereto. No serious dispute has been made by the otherside in this regard. If therefore can be concluded that owing to theinjuries caused in the accident in question deceased lost his life.8.In so far as the burden on the claimants to prove the loss ofincome on account of death of deceased, the claimants examinedKalyan, Secretary Godawari Co-operative Milk Society, Bidkin (Exhibit39) to substantiate the same. The evidence of said witness indicatesthat the deceased was supplying 10 ltr. milk daily to the said societyand was getting Rs.250/- per day. He produced on record incomecertificate. During the course of cross-examination there is not even awp 1568.12(ch).odt6 of 7