High Court
Facts
1 FA 418.24.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO.418 OF 2024Icici Lombard General Insurance Co. Ltd Through It’s BranchManagerVERSUSRekhabai Babasaheb Alias Baba Tupe And Others...Advocate for Appellant : Mr. M.R. Deshmukh Advocate for Respondents nos.1 to 6 : Mr. S.R. Shirsat Respondent no.7 & 8 are served....WITH CIVIL APPLICATION NO. 1316 OF 2024 IN FA/418/2024WITHCIVIL APPLICATION NO. 10025 OF 2024 IN FA/418/2024 CORAM :S. G. CHAPALGAONKAR, J.Dated:March 13, 2025FINAL ORDER :-1.The appellant/original respondent no.3-Insurerimpugns the judgment and award dated 30.10.2023 passed bythe Motor Accident Claims Tribunal, Beed in M.A.C.P. No.315of 2021. Respondent nos.1 to 6/original claimants institutedM.A.C.P. no.315 of 2021 raising claim for compensation ofRs.40,33,200/- towards accidental death of Babasaheb @ BabaNamdeo Tupe, who died in motor-vehicular accident dated24.2.2021. According to claimants, they were dependent onincome of the deceased. On account of untimely death, they 2 FA 418.24.odtlost bread earner of the family. They contend that on24.2.2021 while late Babasaheb was proceeding on hismotorcycle from Karzani towards Beed from Solapur-Aurangabad high way, offending motorcycle bearingregistration no.MH-23/AP-1137 gave dash to his motorcyclefrom rear side. Rider of the offending vehicle was responsiblefor accident. As a result of the accident, Babasaheb sufferedgrievous injuries. He was immediately admitted at ‘GurukrupaHospital’, Beed. Thereafter, he was referred to Kaku-NanaMemorial Hospital, Beed and lastly breathed on 6.3.2021.According to claimants, respondent no.1 was riding offendingmotorcycle. It was owned by respondent no.2 and insuredwith respondent no.3 at the time of accident. Hence, they arejointly and severally liable to pay the compensation.2.Respondent nos.1 and 2 filed written statementand indirectly admitted involvement of offending motorcycle;although, they denied negligence of it’s rider. Respondentno.3-Insurer contested claim firstly doubting involvement ofthe insured vehicle, in alternative, attributed negligenceagainst deceased. 3 FA 418.24.odt3.Tribunal framed issues. Claimants relied uponevidence of CW-1 Mahadeo, CW-2 Bibhishan (alleged eyewitness), CW-3 Ashok Sonwane, Investigating Officer, so alsofiled on record copy of the FIR, spot panchnama, certified copyof the MLC dated 3.3.2021, certified copy of the police reportdated 6.3.2021. Tribunal, on evaluation of evidence on record,allowed claim petition directing respondents to jointly andseverally pay compensation of Rs.6,67,000/- to the claimantsalongwith interest @ 7% p.a. from the date of filing the claimpetition.4.Mr. Mohit Deshmukh, learned advocate appearingfor the appellant vehemently submit that accident occurred on24.2.2021. FIR is lodged on 6.3.2021 by CW-1 Mahadeoagainst unknown vehicle driver. Deceased Babasaheb wasadmitted to hospital on the same day. Till his death, report ofthe accident was not lodged for 11 days. Mr. Deshmukh,submits that first time, involvement of the insured vehicle hasbeen brought on record on the basis of statement of allegedeye witnesses recorded on 7th and 8th March, 2021. He wouldtherefore urge that the Investigating Officer has filed a
Legal Reasoning
4 FA 418.24.odtcollusive charge-sheet depicting involvement of the insuredvehicle.5.Per contra, Mr. S.R. Shirsath, learned advocateappearing for respondent nos.1 to 6 submits that InsuranceCompany has raised false defence. Immediately after accident,deceased was admitted at Civil Hospital, then he was moved toa private hospital for further treatment, where he took his lastbreath on 6.3.2021. Claimants were busy in providing medicalaid to the deceased and immediately after last rites, the FIRhas been lodged. Investigating officer then recorded statementof eye witness on 8.3.2021. Insured motorcycle was seizedduring course of the investigation and charge-sheet has beenfiled against its driver. Therefore, he urges to dismiss theappeal.6.Having considered the submissions advanced, itcan be observed that there is no dispute that late Babasahebdied on account of the injuries sustained in motor-vehicularaccident. On the date of accident, he was proceeding on hismotorcycle, which was alleged to have been dashed by theoffending motorcycle driven by respondent no.1. Claimantswith a view to establish involvement of the insured vehicle 5 FA 418.24.odtrelied upon police investigation papers. They do not havepersonal knowledge as to the accident. Respondent nos.1 and2 i.e. owner and rider of the motorcycle filed common writtenstatement and indirectly admitted involvement of the insuredvehicle and accident, but submitted that vehicle is insured withrespondent no.3 and liability to pay the compensation wouldbe on insurer. Perusal of the written statement ofappellant/insurer shows that large number of general defencesare taken. In paragraph nos.40 to 42 it is stated that possibilityof false implication of the vehicle in order to grabcompensation cannot be ruled out and witnesses referred inthe charge-sheet are interested. Hence, their evidence issuspicious. Apparently, there is no pleadings as to collusionbetween claimants and respondent nos.1 and 2 so as to falselyimplicate the vehicle.7.The claimants in order to establish involvement ofthe vehicle relied upon evidence of Bibhishan MadhukarKanade. His police statement was recorded on 8.3.2021,wherein he states that on 24.2.2021 he went to Mahzhari Fata.He saw that motorcycle of the deceased was dashed by themotorcycle bearing registration no.MH-23/AP-1137 from rear 6 FA 418.24.odtside. Eventually, Babasaheb fell from motorcycle and sufferedhead injury. He took Babasaheb in his auto-rickshaw to CivilHospital, Beed with assistance of Sugriv Landage and otherpersons. He gave a call to relative of Babasaheb from hismobile number. He filed affidavit of same content before theTribunal. During cross examination, he admits that he did notreport incident to the police or did not call ambulance. Except,this nothing suspicious could be elucidated from his crossexamination. Claimants have further relied upon evidence ofAshok Sonwane, I.O., who stated that on the basis of evidenceof eye witness, he filed charge-sheet. In his cross examination,it is suggested that charge-sheet is filed on the basis of falsestatement of witnesses. He admits that except statement of eyewitness, he did not collect any other evidence to confirm theaccident and denied that collusive charge-sheet is filed.8.Apparently, copy of the charge-sheet is placed atExhibit-30 shows statements of three eye witnesses arerecorded by the I.O. One of them is PW 2 Bibhishan. It is alsoa matter of record that there is delay of more than nine days inreporting accident. Involvement of insured vehicle is surfacedafter 11 to 12 days from the date of accident. However, it is 7 FA 418.24.odttrite that delay in lodging FIR itself cannot be a ground todislodge the claim. There can be multiple reasons for suchdelay. When person suffers accidental injuries and put undermedical supervision, his relative would concentrate onproviding best facilities and attendance to him in order tosecure early recovery or in given case to save life. Therefore,mere delay in lodging the FIR may not constitute good defenceif other attending circumstances are sufficient to proveaccident involving vehicle. In the present case, MLC wasforwarded by the Hospital to police station sometimes on3.3.2021. Copy of which is placed at Exhibit 31, it records thatBabasaheb had suffered accidental injuries on his head andshoulder. MLC record of Civil Hospital is not available. Factremains that, on 6.3.2021 upon death of Babasahebimmediately FIR is lodged against the unknown vehicle andwithin two days thereafter statement of eye witnesses arerecorded depicting involvement of the insured vehicle.9.The Supreme Court of India in case of Bimla Deviand others Vs. Himachal Road Transport Corporation andothers reported in (2009) 13 SCC 530, states that claimant isexpected to prove involvement of the vehicle concerned on 8 FA 418.24.odtpreponderance of probability and not beyond doubt. Similarview has been expressed in case of Sajeena Ikhbal and othersVs. Mini Babu George and others reported in (2024) SCConline SC 2883.10.The Supreme Court observed that, in the matter ofroad accident, preponderance of probability is a rule ofevidence and claimants are not expected to to prove the factumof accident by leading evidence by giving strict proof ofaccident caused by particular vehicle in a particular manner. Incase of Mathew Alexander Vs. Mohammed Shafi reported in2023 (13) SCC 510, the Supreme Court observed in paragraphno.12 as under :-“12.A holistic view of the evidence has to be takeninto consideration by the Tribunal and strict proof of anaccident caused by a particular vehicle in a particularmanner need not be established by the claimants. Theclaimants have to establish their case on the touchstoneof preponderance of probabilities. The standard ofproof beyond reasonable doubt cannot be applied whileconsidering the petition seeking compensation onaccount of death or injury in a road traffic accident.”11.Recently, in a case of ICICI Lombard GeneralInsurance Company Ltd., Vs. Rajani Sahoo and Others reportedin 2025 SCC Online SC 8 the Hon’ble Supreme Courtconsidered exposition of law on same issue referring to variousearlier judgments and held that if police record is available 9 FA 418.24.odtbefore the Tribunal, taking note of the Act, it cannot be saidthat looking into such documents for the aforesaid purpose isimpermissible or inadmissible.12.In the present case, appellant has not raised pleathat claimants connived with respondent nos.1 and 2 andfalsely implicated insured vehicle. Evidence of eye witnessalongwith other police papers shows that claimants havedischarged their initial burden to prove the accident involvinginsured vehicle. The respondent nos.1 and 2 i.e. owner anddriver of the insured vehicle have admitted involvement of theinsured vehicle in the accident. Plea of non-involvement takenby the appellant-insurer does not find support. This Courtwhile sitting in appellate jurisdiction may re-appreciate theevidence however, would not replace opinion of the Tribunal,which is based on preponderance of probability.13.In the result, no case is made out to interfere inthe judgment and award passed by the Tribunal. Hence, FirstAppeal being sans merit, dismissed.
Decision
10 FA 418.24.odt14.The amount deposited by Appellant-Insurer bedisbursed to the claimants. Pending civil applications, if any,also stand disposed of. ( S. G. CHAPALGAONKAR ) Judge.aaa/-….