Partly allowed

Savita Balkrushna @ Anil Kulkarni and Ors. v. Waman Sopan Shitre and Anr.

Bombay HC17 Dec 2013FA/835/2012

Case brief

AI extract

What is this about?

First appeal filed regarding compensation under Motor Vehicles Act s. 166. Bench upheld Tribunals finding that deceased was driver but quashed order allowing insurance company to recover No Fault Liability amounts from claimants following Indira Devi.

What did the court decide?

Clause (ii) of impugned order allowing insurance company to recover No Fault Liability from claimants is quashed; rest of judgment upheld.

Savita Balkrushna @ Anil Kulkarni and Ors. Vs Waman… — Motor Accident Claims | Bombay HC (2013)

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1 F.A. 835.2012 - [ J ]

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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FIRST APPEAL NO. 835 OF 2012

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Savita W/o Balkrushna @ Anil Kulkarni Age : 39 Yrs., Occ. Household, R/o : Village Ter, Tq. & Dist. Osmanabad. 2. Pritilata D/o Balkrushna @ Anil Kulkarni Age : 15 Yrs., Occ. : Nil Under the guardianship of Appellant No. 1. 3. Prathmesh S/o Balkrushna @ Anil Kulkarni Age : 12 Yrs., Occ. : Nil Under the guardianship of Appellant No. 1. 4. Anantrao S/o Raghunathrao Kulkarni Age : 71 Yrs., Occ. Agril., R/o : Village Ter, Tq. & Dist. Osmanabad. 5. Vimal Anantrao Kulkarni [ deleted in trial Court vide Exh. 26 ]. .... APPELLANTS

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V E R S U S

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Waman S/o Sopan Shitre

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2 F.A. 835.2012 - [ J ]

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Age : Major, Occ. Service, R/o : Village Medsinga, Tq. & Dist. : Osmanabad.

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The Oriental Insurance Co.Ltd. Branch at Solapur, Near Telephone Bhavan, Solapur, Tq. & Dist. Solapur through its Authorized Officer. .... RESPONDENTS

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Mr. R.S.Deshmukh, Advocate for the Appellants. Mr. J.R.Patil, Advocate for Resp. No. 1. Mr. U.S.Malte, Advocate for Respondent No. 2.

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CORAM : S.V.GANGAPURWALA, J.

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DATE OF JUDGMENT : 17/12/2013

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ORAL JUDGMENT :

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The claimants have filed an application for compensation U/ss 140 and 166 of the Motor Vehicles Act [ For short, ' said Act ' ].

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The application U/s 140 of the said Act is allowed. The Insurance Company paid the amount pursuant to the Award U/s 140 of the said Act. Thereafter, the proceedings U/s 166 of the said Act were

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3 F.A. 835.2012 - [ J ]

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prosecuted further. The same is eventually dismissed. While dismissing the petition U/s 166 of the said Act, the Motor Accident Claims Tribunal, Osmanabad [ For short, ' Tribunal ' ] observed that respondent No. 2 – Insurance Company is entitled to recover No Fault Liability amount if paid to the claimants.

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The claimants have assailed the Judgment and Award passed U/s 166 of the said Act.

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Mr. Deshmukh, learned counsel for the appellants

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strenuously contends that it was an error on the part of the Tribunal to conclude that deceased Anil @ Balkrishna was driving the vehicle. Respondent No. 1 was the owner of the vehicle and it was the respondent No. 1, who was driving the vehicle. The respondent No. 1 took disadvantage of the death of deceased Balkrishna and gave a false statement to the police that it was the deceased who was driving the vehicle. On the basis of said false statement, F.I.R. came to be registered for rash and negligent act against deceased Balkrishna. According to the learned counsel, when respondent No. 1 is the owner of the vehicle, it is highly improbable that deceased Balkrishna was driving the vehicle. It was because the respondent No. 1 did not have the licence, to wriggle out of the criminal prosecution and liability to

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4 F.A. 835.2012 - [ J ]

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pay the amount, false statement was made by respondent No. 1, on the basis of which the F.I.R. was registered.

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According to the learned counsel for the appellants, if the deceased would have been driving the vehicle, then the deceased would not have sustained injuries on the back side of the head. This aspect needs to be considered. The principle of ' res ipsa locuter ' can be applied.

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The learned counsel for the appellants further submits that the witness summons were issued to two (2) witnesses. The summons were also served, however the witnesses did not appear. The Tribunal has drawn adverse inference. The Court could have issued warrant to secure the presence of witnesses. According to the learned counsel, opportunity deserves to be given to the claimants to examine the said witnesses and prove their case. The learned counsel further submits that even otherwise, the Tribunal could not have allowed the Insurance Company to recover the amount from the claimants in respect of No Fault Liability. The learned counsel relies on the Judgment of the Apex Court in the case of Indira Devi & Ors. V/s Bagada Ram & Anr. reported in 2010 AIR (SCW) – 4924 .

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5 F.A. 835.2012 - [ J ]

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Mr. Patil and Mr. Malte, learned counsel for the

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respondents support the Judgment and submit that even Mr. Ghogare in his statement U/s 162 has stated before the police that it was the deceased, who was driving the vehicle. According to Mr. Malte, learned counsel, insurer is not liable to pay compensation under No Fault Liability if it is clearly held that under the policy of Insurance Company, the insurer is not liable to pay compensation and insurer is entitled to be reimbursed by the owner. The learned counsel relies on the Judgment of the Apex Court in the case of National Insurance Co. Ltd. V/s Jethu Ram & Ors. reported in (1999) 9 Supreme Court Cases – 62 .

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With the assistance of the learned counsel, I have gone through the Judgment and the record and proceedings.

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There is no eye witness to the accident. There is no other vehicle also involved in the accident. The statement of Mr. Ghogare which is recorded is also immediately after the accident. He also can not be said to be an eye witness. Even the said statement states that it was the deceased who was driving the vehicle. His evidence would not have any assistance to the claimants. As such, remanding the matter for the said purpose would be of no assistance in adjudicating the

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matter.

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6 F.A. 835.2012 - [ J ]

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In absence of any eye witness to the accident, police papers and the deposition of respondent No. 1 becomes relevant. Respondent

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No. 1 is an eye witness. He has not been shattered in the cross examination with regard to the aspect of the deceased driving the vehicle.

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In absence of any independent evidence, it is not possible to hold the view taken by the Tribunal that the deceased was driving the vehicle, is perverse. The view is a plausible view and the appellate authority would be loath in appreciating the evidence in other manner than the Court of first instance. The appellate authority would normally not interfere with the appreciation of the evidence, if it is not perverse or plausible one. The Court has discussed the evidence. There is also no evidence on record as to the manner in which, when the deceased had a fall.

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Considering the above, i.e. documentary and oral evidence, the said finding that the deceased was driving vehicle, can not be faulted with.

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As far as liberty given to the Insurance Company to recover

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the amount from the claimants is concerned, the same is certainly not in

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7 F.A. 835.2012 - [ J ]

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consonance with the legal position. The Apex Court in the case of Indira Devi [ supra ] has observed that the Tribunal could not have directed the refund of the amount of No Fault Liability already paid to the claimants, when eventually the Tribunal comes to the conclusion that it was the deceased who was solely responsible for the accident.

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In the case of National Insurance Company [ supra ] relied by Mr. Malte, learned counsel, the facts were that under the policy itself, it was held that the Insurance Company is not liable and in such an eventuality though under the policy the Insurance Company is not liable, then the Insurance Company was entitled to be reimbursed by the owner. In the present case, the facts are identical with the case of Indira Devi [ supra ].

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In light of the above, clause (ii) of the operative order of the

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impugned Judgment and Award stands quashed and set aside. Rest of the Judgment is up-held.

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The First Appeal is accordingly partly allowed and disposed of.

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[ S.V.GANGAPURWALA, J. ]

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KNP/F.A. 835.2012 - [ J ]

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8 F.A. 835.2012 - [ J ]

Savita Balkrushna @ Anil Kulkarni and Ors. v. Waman Sopan Shitre and Anr.

Case brief

What is this about?

What did the court decide?

Savita Balkrushna @ Anil Kulkarni and Ors. v. Waman Sopan Shitre and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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