High Court · 2025
Legal Reasoning
-1- FA.1331.2021IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 1321 OF 2021WITHCIVIL APPLICATION NO.7104 OF 2019WITHCIVIL APPLICATION NO.5348 OF 2021New India Insurance Company Ltd.}Through It’s Branch Manager,}Branch Office, Sathe Chowk,}Jalna Raod, Beed,}Tq. & Dist. Beed.}Through its Divisional Manager/}Authorized Signatory,}Mahesh Auto Compound, }Adalat Road, Aurangabad, }Dist. Aurangabad.}… Appellant (Original Respondent No.3)Versus1.Sunanda W/o. Subhash Gaikwad, }Age : 27 years, Occu. : Household,}2.Anisha D/o. Subhash Gaikwad,}Age : 11 years, Occu. : Education, }3.Atish S/o. Subhash Gaikwad, }Age : 8 years, Occu. : Education,}4.Akansha D/o. Subhash Gaikwad,}Age : 6 years, Occu. : Education,}(Respondent Nos.2 to 4 being Minor}U/g of their mother i.e. respondent No.1)}5.Suryabhan S/o. Kanakappa Gaikwad,}Age : 59 years, Occu. : Agriculture, }6.Laxmibai W/o. Suryabhan Gaikwad}Age : 52 years, Occu. : Household, }
Legal Reasoning
-2- FA.1331.2021All R/o. Imampur Road, Barshi Naka,}Beed, Dist. Beed.}7.Shaikh Sattar S/o. Shaikh Sadaroddin,}Age : Major, Occu. : Owner, }R/o. Kazi Nagar, Balepeer,}Nagar Road, Beed,}Tq. & Dist. Beed. }8.Shaikh Taher S/o. Shaikh Munna, }Age : Major, Occu. : Driver, }R/o. Mohammadiya Colony, Beed, } (…. Deleted)Tq. & Dist. Beed.}… Respondents.(Resp.Nos.1 to 6 – Orig. claimantsRespo. Nos. 7 & 8 – Orig. Resp. Nos.1 & 2)……Mr. S. R. Bobade, Advocate for Appellant. Mr. Santosh S. Jadhavar, Advocate for Respondent Nos.1 to 6 in appeal and for Applicants in CA/5348/2021.Mr. A. B. Hawale, Advocate for Respondent No.7 (Absent).Respondent No.8 deleted....… CORAM :ABHAY S. WAGHWASE, J.RESERVED ON :11 JUNE 2025PRONOUNCED ON :23 JUNE 2025JUDGMENT : 1.Appellant - Insurance Company has hereby, assailedthe impugned judgment and order dated 02.01.2019 passed bylearned Motor Accident Claims Tribunal, Beed in M.A.C.P. No. 21 of2018 by invoking provisions under section 173 of the MotorVehicles Act, 1988. -3- FA.1331.2021FACTS GIVING RISE TO THE CLAIM FOR TRIAL ARE AS UNDER2.Deceased, husband of claimant no.1, father of claimantnos.2 to 4 and son of claimant Nos. 5 and 6, was proceeding on hismotorcycle from Beed towards Parali i.e. on his correct side of theroad. Around 6:30 to 7:00 p.m, when he reached Mainda Phata, aToyota Qualis Jeep bearing No. MH-26-K-0777 coming fromopposite direction i.e. from Parali towards Beed, was being drivenin rash and negligent manner and gave dash to the motorcycle ofdeceased, causing fatal injuries and ultimately resulting into death.Hence, on report being lodged, initially crime was registeredbearing Crime No. 283 of 2017 against respondents for offencepunishable under sections 304A, 279 and 338 of Indian PenalCode. On completion of investigation, charge sheet was filed, heirsof deceased Subhash set up motorcycle accident claim bearingM.A.C.P. No. 21 of 2018 claiming compensation to the tune ofRs.44,50,000/-. 3.Learned Motor Accident Claims Tribunal issued noticeon respondents, who were impleaded including present appellantInsurance Company as respondent no.3 to answer the claim.Evidence was permitted to be adduced, which was analyzed andafter hearing each of the side, learned Tribunal partly allowed the -4- FA.1331.2021claim directing respondent nos.1 to 3 to jointly and severally paythe awarded compensation. Aggrieved by the same, Insurance Company respondentNo.3 has come up in appeal.4.Learned counsel for Insurance Company would pointout the factual background of the case, giving rise to accident claimbearing M.A.C.P. No. 21 of 2018. Occurrence of motor vehicleaccident and death of Subhash a motorcycle rider, is not disputed.However, in appeal Insurance Company has taken exception to theimpugned judgment and order of Tribunal on following grounds :- Firstly, there was contributory negligence also on thepart of deceased. Secondly, no convincing evidence that theoffending vehicle Toyota Qualis jeep which was insured withrespondent no.3 to be involved or responsible for the accident ormishap as report was lodged about dash being given by unknownvehicle. Thirdly, claimants being already beneficiaries underWorkmen Compensation Act, learned Tribunal ought not to haveawarded compensation at all in the second claim. Lastly, learnedcounsel would submit that, learned Tribunal when having held thatthere was contributory negligence, ought to have fixed 50%liability on deceased also while computing the compensation -5- FA.1331.2021entitled by the claimants. For all above reasons, impugnedjudgment is sought to be assailed and set aside.5.Per contra, learned counsel for claimants wouldsupport the findings and conclusion drawn by learned MotorAccident Claims Tribunal by submitting that all factors andessential requirements are scrupulously dealt and decided by thelearned trial court. Arguments advanced by each of the side arecorrectly appreciated and judgment being evenly balanced, it is hissubmission that, the same may not be disturbed or interfered with. 6.Heard each of the side. Perused the record madeavailable before the Tribunal and re-appreciated and reanalyzedthe evidence. Before the Tribunal following issues came to besettled and drawn :- “(1)Do the claimants prove that on 04.11.2017 while deceased SubhashSuryabhan Gaikwad was proceeding to his village Sonna Khota from Beedon motorcycle No. MH-23-AQ-7313 by Beed – Parali Road, at about 6:30to 7.00 p.m. a vehicle accident took place at Mainda Phata in the vicinity ofvillage Mainda due to rash and negligent driving of driver of Toyota QualisJeep no. MH-26-K-0777 wherein he died of injuries sustained in theaccident. (2)Do respondent no.1 and 2 prove that the accident took place due towrong of the deceased ?(3)Does respondent no.3 proves that the accident took place due to -6- FA.1331.2021contributory negligence of the deceased?(4) Does respondent No.3 further proves that the driver of ToyotaQualis Jeep No. MH-26/K-0777 was not holding valid and effective drivinglicence at the time of accident, therefore, the insured has breached theterms and condition of insurance policy ?(5)Does respondent No.3 further proves that the petition is bad for non-rejoinder of necessary party i.e. owner and insurer of Motorcycle No. MH-23/AQ-7313?(6)Whether the claimants are entitled for compensation ? If yes, whatshould be the quantum and from whom?(7)What order and award ?”7.In support of claim petition, though wife of deceasedSubhash PW1 namely Sunanda gave her evidence at Exh.17,admittedly she is not an eye witness to the alleged accident.Therefore, on the aspect of accident, rash and negligent driving,her evidence is of no avail. Report of occurrence seems to be at theinstance of Laxman Gaikwad on 05.11.2017, but apparently fromhis statement it is clear that, he has received telephonicinformation about deceased Subhash meeting with an accident andhe consequently reaching there i.e. after the accident. He merelyundertook the exercise of shifting his cousin to hospital. Thus, evenhis evidence is formal in nature on above aspect. -7- FA.1331.20218.Claimants have adduced evidence of C.W.2 aContractor / builder, his evidence is on the point of employmentand earnings of deceased. Main witness on behalf of claimant isDnyneshwar Rambhau Mitkar (C.W.3) and his evidence is atExh.39 and its substance is that on 04.11.2017, he had been toWadwani for his personal work and while returning back onmotorcycle over Parali to Beed road, around 6:30 to 7:00 p.m., heclaimed to have seen a motorcycle proceeding ahead with him inthe vicinity of field of Rajabhau Ghumare and also claims to haveseen Qualis vehicle coming from opposite direction in excessivehigh speed, its driver losing control and going to the wrong sideand giving dash to the motorcycle. He stated on affidavit aboutQualis vehicle being halted at some distance and further accordingto him, in the headlight of his motorcycle when he saw the rider ofthe motorcycle, he realized injured to be his cousin. He also statedon affidavit that, he questioned the Driver and he gave his name asShaikh Taher Shaikh Mannan and he has also seen vehicle numberof the Qualis Jeep as MH-26-K-0777.9.Above witness is subjected to cross. In initial cross,there is questioning on the point of relationship with deceased andhe is asked on which directions he was proceeding, whether therewas traffic on the road, whether at the time of accident it was dark -8- FA.1331.2021or not. Suggestion given that deceased himself went and dashed onthe jeep denied by this witness. Then he is questioned whether hemade telephonic call to police and he answered that he did not, butmade phone call to father-in-law of Subhash. Rest all suggestionsare denied. 10.The tenor of above cross examination clearly showsthat, presence of this witness is not seriously challenged. Theanswers given by this witness does not render his evidencedoubtful or about he being not present at the scene of occurrence.No doubt, he was not diligent in himself reporting the occurrence topolice, in spite of being eye witness, but that itself would not be aground to raise suspicion over his belated statement or affidavit.Answers given by him in very cross, probabilise his presence at thespot and as such there is no reason to doubt whether he is an eyewitness or not. Therefore, the arguments raised before this courton this count, has no merit.11.Much emphasize is laid by the learned counsel forappellant on the aspect of initial report to police about accident tobe by unknown vehicle. Statement of Laxman Gaikwad informantis apparently about accident by unknown vehicle. However,evidence of witness Dnyaneshwar Mitkar for above discussed -9- FA.1331.2021reasons, cannot be overlooked. On affidavit he has stated that onthe next day of accident i.e. on 05.11.2017 after the last rituals heclaims to have passed information about the offending vehicle tofather-in-law of deceased namely Suryabhan Gaikwad and others.Therefore, on the strength of available material, there is no reasonto doubt that offending vehicle Qualis Jeep bearing No.MH-26-K-0777 was involved in the accident. 12.On careful study of spot panchanama Exh.19, thedirections in which both vehicles were proceeding and factualsituation can be visualized. Learned Tribunal has already held thatclaimants failed to prove that driver of the offending vehicle Qualiswas wholly and solely responsible. Reasons to record such findingsare reflected in paragraph nos. 12 and 13. On analyzing the aboveobservations and comparing its contents of the spot panchanama,no contrary view than the one taken by Tribunal would emerge. Itis not unreasonable to expect a driver of four wheeler vehicle to bemore alert and diligent towards the traffic on the road. However,even deceased seems to be some extent responsible for notcarefully riding the motorcycle. There is damage to both vehiclesand as such there is reason to hold that even motorcycle rider ispartly responsible. In such situation and in absence of any materialto show that Qualis vehicle left its correct side and came -10- FA.1331.2021completely the wrong side and gave dash, it is unsafe to fix entireresponsibly on four wheeler vehicle. Therefore, there is reason tohold that, there is contributory negligence on the part of deceasedalso but not to the extent to which driver of Qualis vehicle isresponsible. This Court has noticed that learned Tribunal has fixed70% and 30% responsibility respectively. There is nothing unusualin ascribing such percentage of negligence. Learned counsel forappellant would strenuously submits that, Tribunal ought to haveheld 50% of liability on deceased also. However, there is nomaterial to hold that both, driver of the Qualis vehicle anddeceased to be equally responsible. In view of peculiar facts andcircumstances of the cases, no fault can be found on the part of theTribunal for holding Qualis vehicle responsible to the extent of 70%and remaining negligence to deceased. 13.Another ground pressed into service by learnedcounsel for appellant is that claimants are already beneficiaries ofcompensation under Workmen’s Compensation Act and as suchaccording to him, claimants are precluded from securing dualbenefits. The Hon’ble Apex Court in the case of Ramchandra v.Regional Manager United India Insurance Co. Ltd., reported in AIR2013 SC 2561, while deciding Civil Application No.8725 of 2012,the Hon’ble Apex Court held that, the claimants are entitled for the -11- FA.1331.2021amount of compensation even if they are previously beneficiariesof some amount under Workmen’s Compensation Act. For readyreference the observations, which are relevant and reflected inparagraph no.20 of the judgment is reproduced as under :“20. The claimant / Appellant is surely entitled to the amount ofcompensation over and above the Workmen's Compensation Act inview of the ratio of the decisions referred to hereinbefore. The riderno doubt is that the statutory liability cannot be more than what isrequired under the statute under Section 95 of the Motor Vehicles Actwhich cannot bind the parties or prohibit them from contracting orcreating unlimited or higher liability to cover wider risk and theinsured is bound by the terms of the contract specified in the policy inregard to unlimited or higher liability as the case may be. Thus, it isalthough correct that limited statutory liability cannot be extended tomake it unlimited or higher, it is also manifestly clear that insofar asthe entitlement of the claimant/deceased cleaner of the vehicle isconcerned, the same cannot be restricted to the compensation underthe Workmen's Compensation Act and is entitled to compensationeven under the Motor Vehicles Act which will depend upon the termsand conditions of the policy of insurance.” Having above point being settled by the Hon’ble ApexCourt and here except admission in cross, there is no other distinctmaterial regarding how much amount claimants have receivedunder so called scheme of Workmen’s Compensation, it would beunjust to disentitle them from receiving any compensation underMotor Vehicles Act. -12- FA.1331.202114.Perused the judgment impugned herein. Issues areframed as are arising on the basis of contentions raised by theparties. Available evidence is appreciated in the manner requiredunder law. No fault can be found in appreciation of the same.Hence, there being no infirmity or patent perversity, this courtdoes not find reasons to interfere. Hence, the following order ispassed :- ORDER (i)The appeal stands dismissed. (ii)In view of dismissal of the appeal itself, CivilApplication No. 5348 of 2021 filed by the original claimants forwithdrawal of amount is allowed in terms of prayer clause “B”. (ii)Civil Application No.7104 of 2019 also stands disposedoff. (ABHAY S. WAGHWASE, J.) Tandale