High Court
Legal Reasoning
1 FA 3093.24+CA.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO.3093 OF 2024The New India Assurance Co Ltd Through Branch Manager,Branch Office, at Aurangabad. VersusShano wd/o Shaikh Hamid and others.…Mr. Mohit R. Deshmukh advocate for appellantMr. D.S. Kulkarni h/f Mr. Shaikh Kayyum Najir, Advocate forrespondents.…WITHCIVIL APPLICATION NO. 12275 OF 2024 IN FA/3093/2024Shano Shaikh Hamid And OthersVERSUSThe New India Assurance Co Ltd Through Branch ManagerAnd Ors....Advocate for Applicants : Mr. D.S. Kulkarni h/f Mr. ShaikhKayyum Najir Advocate for Respondent 1 : Mr. M. R. Deshmukh …CORAM :S. G. CHAPALGAONKAR, J.Reserved on :January 31, 2025Pronounced on :February 26, 2025.FINAL ORDER :-1.Present appeal takes exception to the judgmentand award dated 14.03.2024 passed by the Motor AccidentClaims Tribunal, at Aurangabad in M.A.C.P. No.699 of 2021.2.The Respondents/original claimants institutedclaim under section 166 of the Motor Vehicles Act, 1988
Legal Reasoning
2 FA 3093.24+CA.odtseeking compensation towards accidental death of ShaikhHameed Shaikh Ameen in motor-vehicular accident dated12.6.2021 that took place near Modha Wadi corner on Bharadito Sillod Road. According to claimants, insured Jeep (Traxcruiser) bearing registration No.MH-20/DV-7286 came fromSillod side and gave forceful dash to victim and others whowere standing on road. Resultantly, victim suffered grievousinjuries resulting into death. The incident was reported bypolice. Eventually, crime No.82 of 2021 was registered. Ondue investigation, charge-sheet came to be filed against thejeep driver.3.Respondents nos.1 and 2 filed their writtenstatement, indirectly, they admitted factum of accident, butdenied attributions of negligence against the driver.4.Respondent No.3-Insurance Company filed writtenstatement raising defence of false involvement of insuredvehicle apart from other defences. The claimants relied onown evidence and police papers, whereas respondent-insurance company examined surveyor Mr. Hariprasad Jaju,Manager Mr. Anil Shinde, so also relied upon report of surveycontaining photographs of vehicle snapped at the time of 3 FA 3093.24+CA.odtsurvey. Learned Tribunal, after considering rival submissionsallowed claim petition, thereby accepting case of claimants asto the accident involving the insured vehicle. Consequently,passed award holding respondents jointly and severally liableto pay assessed compensation.5.Mr. Mohit Deshmukh, learned advocate appearingfor the Appellant-Insurance Company vehemently submits thatnarration of accident as discernible from police papers createsserious doubt. He submits that, on next day incident wasreported to the police station by one Laxman Kalyankar statingthat unknown Cruiser Jeep gave forceful dash to the claimantand others. Registration number of the vehicle is notmentioned in FIR, however, while describing offending vehicle,it is highlighted that rear side mirror of offending jeep wasbearing design of roses. After 17 days of the accident i.e. on30.7.2021 supplementary statement of informant is recordedto show that insured vehicle is the offending vehicle. As such,belatedly registration number of insured vehicle is brought onrecord. 6.Mr. Deshmukh would submit that after 22 days ofthe accident, own damage claim of the insured vehicle had 4 FA 3093.24+CA.odtbeen reported to the Insurance Company. In pursuance to theintimation, surveyor was appointed, who snapped photographsof vehicle. Those photographs are placed on record alongwithevidence of surveyor. Description of the vehicle as given in FIRmismatch with the insured vehicle. In that view of the matter,own damage claim was repudiated giving reason of delay inintimation and vehicle mismatch. Mr. Deshmukh wouldfurther submit that conduct of respondent nos.1 and 2 i.e.owner and driver of the vehicle is doubtful. They belatedlysurrendered vehicle to the police station admitting itsinvolvement in the accident. Thereafter, lodged own damageclaim with the Insurance Company. The decision ofrepudiation of claim was not challenged till final hearing ofclaim petition before the Tribunal. However, when this pointwas pressed during argument, a consumer complaint is filedassailing repudiation. Mr. Deshmukh would submit that,Tribunal ignored aforesaid aspects of the matter anderroneously concluded that insured vehicle was involved in theaccident.7.Per contra, Mr.D.S. Kulkarni h/f Mr.ShaikhKayyum Nazir, learned advocate appearing for the 5 FA 3093.24+CA.odtrespondents-claimants supports judgment and award passed bythe Tribunal. He submits that FIR clearly states that a CruiserJeep was an offending vehicle. In pursuance to suchdescription, vehicle has been traced. Driver of the vehicle hasbeen charge-sheeted. It is not the typical case of delay inlodging FIR and implant of insured vehicle. As many as sixpersons had suffered injuries in the accident and three of themlost life. Owner and driver of offending vehicle admittedfacutm of the accident. Offending vehicle had suffered damagedue to impact of accident. Evidence tendered by the InsuranceCompany also depicts damage to vehicle. Evidence on recordis sufficient to hold that vehicle insured with appellant was theoffending vehicle. Mr. Kulkarni further submits that, claimantsare required to prove factum of accident on preponderance ofprobability. Strict proof as to the accident or involvement ofthe vehicle is not germane to the summary proceeding underMotor Vehicles Act.8.In support of his contentions, he relies uponjudgment of the Supreme Court in case of Geeta Dubey andothers Vs. United India Insurance Company Ltd., and othersreported in 2025 (1) TAC 8 (SC). 6 FA 3093.24+CA.odt9.Having considered the submissions advanced andafter going through the record, it can be observed that there isno dispute as to accident occurred on 12.6.2021 wherein thevictim suffered fatal injuries. One of injured victim lodged FIRdated 13.6.2021, copy of which is admitted in evidence andmarked at Exhibit-28. Perusal of FIR shows that, although,registration number of the offending jeep is not mentioned,plausible description of the vehicle is given. It states thatoffending vehicle was Cruiser Jeep and there was rose designon its rear mirror. Lateron, vehicle seized during course of theinvestigation. Finally, charge-sheet has been filed against itsdriver. Respondent nos.1 and 2 filed written statement beforeTribunal admitting involvement of vehicle in the accident. Owndamage claim was reported to the Insurance Company. Inpursuance to such report surveyor snapped photographs.Damage to the vehicle can be observed form thosephotographs.10.In this background, insurer put forth defence offalse implication of the insured vehicle relying upon allegeddiscrepancy as to identification of vehicle observed from FIRand surveyor report. Evidence of the surveyor is recorded 7 FA 3093.24+CA.odtbefore Tribunal. He placed his report before the Tribunalalongwtih photographs, in which, Rosie design is not seen onrear mirror as stated in the FIR. The appellant is trying tomake out case of false implication only on the aforesaidevidence.11.In this background, it is apposite to refer to theobservations of the Supreme Court of India in case of BimlaDevi and others Vs. Himachal Road Transport Corporation andothers reported in (2009) 13 SCC 530, which state that theclaimant is expected to prove involvement of the vehicleconcerned on preponderance of probability and not beyondreasonable doubt. Similar view has been expressed in case ofSee Sajeena Ikhbal and others Vs. Mini Babu George andothers reported in (2024) SCC online SC 2883.12.In that view of the matter, once claimantsdischarged initial onus on the basis of police investigationpapers, it is for the Insurance Company to prove it’s defense ofcollusion between driver/owner of the Truck and claimants.Witness of the Insurance company i.e. PW-2 candidly admittedthat his company has not taken any steps against alleged falseimplication of vehicle. They have not made complaint before 8 FA 3093.24+CA.odtHigher police authority seeking further investigation or raisedobjection as to conclusions drawn by the Investigating Officer.The thrust of their defence is alleged discrepancy in vehicledescription, as to rose design on rear mirror. Pertinently,immediately on next day of the accident, offending vehicle isdescribed as a Cruiser Jeep and insured vehicle is also aCruiser Jeep. It is, therefore, evident that although insurer hasput up a defence of false implication of the vehicle, in absenceof positive steps to unearth suspected collusion, defence cannotbe accepted.13.Mr. Deshmukh, learned advocate appearing for theappellant endeavors to pin-point some more discrepancies inthe police investigation and also harp upon conduct of theowner/driver, however, that itself would not be sufficient toestablish the defence of false implication. This Court cannotrely upon bundle of surmises to defeat the claim forcompensation. It is now well settled that proceedings underMotor Vehicles Act is summary. Once the claimants dischargedonus to bring on record accident involving the insured vehicleon the basis of police investigation papers in form of charge-
Decision
9 FA 3093.24+CA.odtsheet, onus shift upon the respondents to establish its defencecontrary to the case of the claimants.14.In the result, there is no substance in the appeal.First Appeal stands dismissed. Pending civil application, if any,also stands disposed of. The amount deposited by theInsurance Company be disbursed to the claimants after 90days. ( S. G. CHAPALGAONKAR ) Judge.aaa- (f)…..