Mr v. vs Tarde
Legal Reasoning
1912-fa-4034-2023IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO.4034 OF 2023The Manager,HDFC ERGO General Insurance Co. Ltd.,S.No.95/3, Opp. to Axis Bank,Savedi Road, AhmednagarThrough: It’s Authorized Signatory2nd Floor, Malpani’s Oberoi Tower,Opposite Government Milk dairyRamanand Colony, Jalna RoadAurangabad – 431 001.…..APPELLANT(Orig. Resp.No.2)VERSUS01.Swati Ashok NimbalkarAge : 32 Years, Occupation : Household,02.Atharv Ashok NimbalkarAge : 12 Years, Occu. Education03.Shahaji Chimanrao NimbalkarAge : 72 Years, Occu. NilRespondent No.2 being minor throughnatural guardian i.e. Mother respondent No.1All R/o: Bahirobawadi, Karjat,Taluka Karjat, District Ahmednagar04. Shekhar Anant Dande,Age: 45 years, Occu:R/o: Rashin, Taluka Karjat,District Ahmednagar-414402 …RESPONDENTS(Respondent Nos.1 to 3 - Orig. Claimants(Respondent No.4 – Orig. Opponent No.1 )CIVIL APPLICATION NO. 842 OF 2024 IN FA/4034/2023 2912-fa-4034-2023WITHCIVIL APPLICATION NO. 13205 OF 2023 IN FA/4034/2023______________________________________________________Mr. M. R. Deshmukh, Advocate for AppellantMr. A. A. Nimbalkar, Advocate for Respondent Nos.1 to 3______________________________________________________WITHFIRST APPEAL NO.4414 OF 2023Shekhar Anant Dande,Age: 38 years, Occu: AgriR/o. Rashin, Tq. Karjat,Dist-Ahmednagar.…..APPELLANT(Orig. opponent No.1 i.e. owner of offending vehicle)VERSUS1.Swati Ashok Nimbalkar,Age : 32, Occu: Household,2.Atharv Ashok Nimbalkar,Age : 12, Occu: Education3.Shahaaji Chimanrao Nimbalkar,Age : 73, Occu: Nil,Resp. No.1 to 4 R/o, Bahirobawadi,Karjat, Tq. Karjat,Dist-Ahmednagar.4.The Manager,HDFC ERGO General InsuranceCo. Ltd.,S. No.95/3, Opp. To Axis BankSavedi Road, Ahmednagar…..RESPONDENTS(Resp. No.1 to 3 are Orig.claimant & Resp. No.4 is Insurance Company) 3912-fa-4034-2023WITHCIVIL APPLICATION NO. 14401 OF 2023 IN FA/4414/2023______________________________________________________Mr. V. V. Tarde, Advocate for AppellantMr. A. A. Nimbalkar, Advocate for Respondent Nos.1 to 3Mr. M. R. Deshmukh, Advocate for Respondent No.4______________________________________________________…..CORAM:ROHIT W. JOSHI, J. DATED:28TH MARCH, 2025ORAL JUDGMENT :-FIRST APPEAL NO.4034 OF 2023FIRST APPEAL NO.4414 OF 2023.First Appeal No.4034 of 2023 is filed by respondentNo.2 in Motor Accident Claim Petition No.179 of 2021decided by the learned Member, Motor Accident ClaimsTribunal, Ahmednagar vide judgment and award dated12.06.2023.2.First Appeal No.4414 of 2023 is preferred by opponentNo.1 in the said Claim Petition, who is owner of the offendingvehicle.3.One Ashok Nimbalkar died in a road accident, whichhad occurred at about 07:00 pm on 18.02.2021 on KarjatMirajgaon Road near Akshay Hotel in front of agricultural 4912-fa-4034-2023land of Manohar Nimbalkar within the jurisdiction of KarjatPolice Station. Respondent Nos.1 to 3 are widow, son andfather of deceased Ashok, who are original claim petitioners.It is the case of respondent Nos.1 to 3 that on 18.02.2021 atabout 07:00 pm while Ashok was returning from hisagricultural land, he was hit by the offending motorcyclebearing registration No.MH-16-CU-6081 from the back side.It is stated that deceased Ashok was walking besides the roadat the time of his accident. The motorcycle was being drivenby one Suraj Kulathe, who is also died in the accident. Thespot of the accident is near Akshay Hotel, which is owned byone Laxman Nimbalkar, who is cousin of the deceased. It isstated that deceased Ashok was 34 years old at the time of hissad demise and he was working as a Commission Agent. It isstated that, he was an income tax payee. Since the disputedoes not pertain to the quantum of the amount, further detailsin this regard may not be relevant.4.Upon being served with the summons in the matter, theowner/appellant in First Appeal No.4414 of 2023 andInsurance Company/appellant in First Appeal No.4034 of2023 appeared in the matter and filed their written 5912-fa-4034-2023statements. The owner did not dispute involvement of hisvehicle in the accident, however, he contended that theaccident had occurred due to negligence of the deceased. Asagainst this, the Insurance Company disputed involvement ofthe vehicle in the accident. The case of the InsuranceCompany is that initially, in the First Information Report, thenumber of offending vehicle was mentioned as MH-16-CK-4936, which is owned by Vishal Kulthe, real brother ofdeceased Suraj Kulthe, who was driving the offending vehicle.It is stated that insurance of this motorcycle bearing No.4936had lapsed in the year 2019. The claimants and his relativesrealized that they will not be able to recover the amount ofcompensation since the vehicle was not duly insured on thedate of accident and therefore, on the next date, VishalKulthe, who has lodged First Information Report hadappeared before the police authority for the purpose ofrecording his supplementary statement, in which hementioned the number of offending vehicle as MH-16-CU-6081. It is stated that the number of this vehicle is mentioneddeliberately because it was duly insured as on the date ofaccident. The case of Insurance Company, in a nutshell, is 6912-fa-4034-2023that a false suit was registered to show a vehicle that was notinvolved in the accident as being involved only in order torecover compensation from Insurance Company.5.Based on the rival pleadings, the learned Tribunalframed issues in the matter. The parties have led theirevidence. The claimants have examined respondentNo.1/widow of the deceased and Laxman Nimbalkar, theperson who has lodged the First Information Report and thesupplementary statement. As against this, the owner hasentered into the witness box where he does not disputeinvolvement of his vehicle. However, he reiterates that theaccident had occurred due to negligence of the deceased. TheInsurance Company has also examined two witnesses. Boththese witnesses are from the Office of Regional TransportOfficer (R.T.O.). The deposition of one Aparna SantoshDhadge is recorded at Exhibit-57. She was working as a clerk-cum-typist in the office of Deputy Regional Transport Officer.She has produced particulars of the vehicle bearingregistration No.MH-16-CK-4936 on record, according towhich, the said vehicle was insured only up to 11.07.2019 andthereafter, the insurance was not renewed. The deposition of 7912-fa-4034-2023this witness is recorded in order to point out that the vehicleNo.4936, whose number was initially mentioned in the FirstInformation Report was not insured on the date of accidentand other witness Tushar Ingle was examined by theInsurance Company to establish that the driver of theoffending vehicle was not holding driving license on the dateof accident. His deposition is at Exhibit 57.6.Heard Mr. M. R. Deshmukh, learned Advocate for theappellant in First Appeal No.4034 of 2023, Mr. V. V. Parde,learned Advocate for the appellant in First Appeal No.4414 of2023 and Mr. A. A. Nimbalkar, learned Advocate appearingfor the respondents in both the appeals who are the claimantsbefore the learned Tribunal.7.I have perused the pleadings, depositions and exhibiteddocuments, more particularly, the First Information Reportdated 18.02.2021 at Exhibit 26, supplementary statementdated 19.02.2021 at Exhibit 27 and spot panchnama preparedon 19.02.2021 at Exhibit 28. Having heard the rivalsubmissions as aforesaid, following points arise for myconsideration. 8912-fa-4034-2023i.Is it proved that motorcycle bearingregistration No. MH-16-CU-6081 was involved inthe road accident?ii.Has the accident occurred due tonegligence of the driver of motorcycle/deceasedSuraj Kulathe or due to negligence of thedeceased Ashok Nimbalkar?iii.Whether the learned Tribunal was correctin ordering the Insurance Company to pay theamount of compensation and to recover thesame from owner of the vehicle?As to point No.1:8.It is apparent that the accident had occurred nearAkshay Hotel, which is owned by Laxman Nimbalkar. ThisLaxman Nimbalkar had taken the deceased to the hospitalafter the accident. He has lodged the First InformationReport. In his First Information Report, he has mentioned thenumber of the offending vehicle as MH-16-CK-4936, which isowned by Vishal Kulathe, brother of the deceased Driver SurajKulathe. This First Information Report is lodged on18.02.2021 at around 09:30 pm i.e. within a period of aroundtwo and half hours from the time of accident. However, onthe next date, this Laxman Nimbalkar has given a 9912-fa-4034-2023supplementary statement to the police authority stating thatthe correct number of the offending vehicle is MH-16-CU-6081.9.Respondent No.1/widow of the deceased has alsoentered into the witness box, however, admittedly she is notwitness to the accident and therefore her evidence is notrelevant for deciding the controversy involved in the appeal.10.As regards the evidence of the owner, the same is alsonot relevant because he was admittedly not present at thetime of accident. The evidence of two witnesses fromRegional Transport Officer’s Office, whose depositions arerecorded by the Insurance Company is relevant only todemonstrate that the driver of the offending vehicle was notholding a valid license on the date of accident and further thatthe vehicle bearing registration No. MH-16-CK-4936 whichwas initially named in the First Information Report was nothaving a valid insurance covered as on the date of accident.11.Learned Advocate Mr. M. R. Deshmukh, appearing forthe Insurance Company has vehemently argued thatimmediately after the accident, Laxman Nimbalkar had rushed 10912-fa-4034-2023to the spot of accident. He states that the driver of theoffending vehicle/Suraj Kulathe had also suffered seriousinjuries and the offending vehicle was lying on the spot ofaccident when Laxman Nimbalkar had reached there. Hestates that it is obvious that he must have seen the registrationnumber of the offending vehicle. Mr. Deshmukh, learnedAdvocate further argued that having seen the registrationnumber of the offending vehicle, he mentioned the same inthe First Information Report lodged by him with the policestation. The contention of Mr. Deshmukh is that havingrealized that the offending vehicle which was involved in theaccident i.e. vehicle bearing registration No.4936 was notinsured, deliberately on the next date, number of anothermotorcycle, which was duly insured is mentioned in thesupplementary statement. Mr. Deshmukh argued that thisLaxman Nimbalkar is cousin of the deceased Ashok Nimbalkarand therefore, he has given number of another motorcycle,which was duly insured only in the view to ensure thatcompensation can be recovered from the Insurance Company.Mr. Deshmukh has pointed out that the statement in the FirstInformation Report, where the informant Laxman Nimbalkar 11912-fa-4034-2023states that he got knowledge about the number of vehicle bymaking inquiries on the spot of accident. As against this, inhis supplementary statement dated 19.02.2021 at Exhibit 27,he has stated that he had stated incorrect number of theoffending vehicle due to haste and the correct number of thevehicle was MH-16-CU-6081. Mr. Deshmukh draws myattention to the examination-in-chief of Laxman Nimbalkar atExhibit 35, where he states that while while deceased AshokNimbalkar and Suraj Kulthe were being taken to the hospitalin the ambulance, he found registration certificate (R.C. Book)of motorcycle bearing registration No.MH-16-CK-4936 in thewallet of Suraj Kulathe and therefore, he mentioned the saidnumber in the First Information Report. Mr. Nimbalkarcontends that these inconsistencies in the statements ofLaxman Nimbalkar, coupled with the fact that he is cousin ofdeceased Ashok Nimbalkar are enough to establish thatvehicle No.6081 was not involved in the accident. As againstthis, Mr. Aniruddha Nimbalkar, learned Advocate for theclaimants points out that the offending vehicle bearingregistration No.6081 was found on the spot of the accidentduring the spot panchnama, which was conducted on
Legal Reasoning
12912-fa-4034-202319.02.2021. He points out that the vehicle bearingregistration No.6081 was also damaged indicating itsinvolvement in the accident. He further contends that theaccident had occurred on 18.02.2021 at around 07:00 pm anda person in the family had died. The supplementarystatement is recorded on the next day at 11:00 am. The spotpanchnama is conducted on the following date on 09:00 amto 10:00 am. Mr. Nimbalkar points out that when a familymember of a person has died, it is impossible to create a falsestory and also to create evidence supporting the same within ashort period of around 18 to 20 hours. He contends thatexistence of the vehicle in a damaged condition on the spot ofaccident is sufficient to hold that the vehicle was involved inthe accident.12.Mr. V. V. Parde reiterates his submission that althoughhis vehicle was involved in the accident, the accident hasoccurred due to negligence on the part of deceased AshokNimbalkar.13.At the outset, it needs to be mentioned that the presentappeal is filed under Section 173 of the Motor Vehicles Act. 13912-fa-4034-2023The controversy between the parties is of civil nature. Thematter is required to be adjudicated on principles ofpreponderance of probability. It is clear from the evidence onrecord that two contrary versions have come on record withrespect to the registration number of the offending vehicle,however, one cannot loose sight of the fact that the correctionin the number is done immediately on the next day within aperiod of around 14 hours from the date and time on whichFirst Information Report is lodged. It also needs to be notedthat admittedly, vehicle bearing registration number MH-16-CU-6081 is found at the spot of accident and also in adamaged condition. There is nothing to infer that the spotpanchnama prepared by police authority on the next date isalso manipulated. Rather, such is not even the case of theappellant/Insurance Company. It will be pertinent to mentionhere that although, registration number of the offendingvehicle is not correctly mentioned in the First InformationReport, the make and model of the offending vehicle iscorrectly mentioned. In my opinion, all above facts andcircumtances viewed together are sufficient to hold that thevehicle owned by appellant in First Appeal No.4414 of 2023, 14912-fa-4034-2023which was insured with the appellant/Insurance Companywas involved in the accident. I have also perused findingsrecorded by the learned Tribunal in this regard with the ableassistance of the learned Advocates. The findings appear to bejust and proper and based on evidence on record which I havediscussed above.14.Learned Advocate for the respondent/original claimantshas placed reliance on a recent judgment of the Hon’bleSupreme Court in the matter of Geeta Dubey Vs. United IndiaInsurance Company limited (SLP Civil 8551 of 2024) decidedon 18.12.2024, wherein the Hon’ble Supreme Court has heldthat in case where there is a dispute with respect toinvolvement of offending vehicle concerned, the claimant isonly expected to prove the case on preponderance ofpossibilities and not beyond a reasonable doubt. The ratio ofthe said judgment is clearly applicable to the facts of thepresent case.15.In that view of the matter, the contention raised by thelearned Advocate for the Insurance Company regarding noninvolvement of the vehicle in the accident is rejected. 15912-fa-4034-2023As to point No.2:16.A contention is raised by owner of the vehicle, who isappellant in First Appeal No.4414 of 2023 that the accidentdid not occur on account of negligence on the part of SurajKulathe, who was riding the offending motorcycle, but due tonegligence of deceased Ashok Nimbalkar. There is no eyewitness to the accident. There is nothing to infer that AshokNimbalkar has died due to negligence on his own part.Nothing can be inferred in this regard even on perusal of thespot panchnama. In that view of the matter, the contention bythe learned Advocate for the owner is rejected.As to point No.3:17.The learned Tribunal has held that the person drivingthe offending motorcycle was not holding valid license. This,according to the learned Tribunal, it is not a fundamentalbreach. In that view of the matter, the learned Tribunal hasdirected the Insurance Company to make good the loss andthereafter recover the same from the owner of the vehicle.Perusal of the evidence of R.T.O. witness at Exhibit 57 willindicate that deceased Suraj Kulathe, who was plying themotorcycle, did not hold a valid driving license. However, this 16912-fa-4034-2023by itself cannot be a fundamental breach of contract ofInsurance. Nonetheless, breach of policy condition is dulyproved. In that view of the matter, no fault can be found withthe learned Tribunal in applying the principle of pay andrecover.18.In the light of findings recorded above, I am inclined todismiss both the appeals i.e. First Appeal No.4034 of 2023 andFirst Appeal No.4414 of 2023. Hence, the following order:ORDERa. First Appeal No.4034 of 2023 and First Appeal No.4414of 2023 are dismissed with no orders as to costs. 19.Pending Civil Applications, if any, stand disposed of.CIVIL APPLICATION NO.842 OF 2024.In view of disposal of both the appeals on merit, theapplicants are permitted to withdraw the amount alongwithaccrued interest.( ROHIT W. JOSHI, J. )Rushikesh/2025