UNITED INDIA INSURANCE CO LTD THROUGH ITS REGIONAL MANAGER Vs. PANSHEELA WD/O INDRARAJ BORKAR
LAWS(BOM)-2017-8-267
HIGH COURT OF BOMBAY
Decided on August 18,2017

United India Insurance Co Ltd Through Its Regional Manager Appellant
VERSUS
Pansheela Wd/O Indraraj Borkar Respondents

JUDGEMENT

Indira Jain, J. - (1.) This appeal takes an exception to the judgment and award dated 29/10/2005 passed by the Motor Accident Claims Tribunal, Gondia (hereinafter referred to as 'the Tribunal' for short) in Claim Petition No.40/2004. By the said judgment and award, Tribunal awarded compensation of Rs.9,48,160/- with interest thereon to the legal representatives of deceased Indraraj Borkar, who met with his death in a vehicular accident occurred on 30/04/2004.
(2.) The facts giving rise to the present appeal may be stated in nutshell as under : i. On 30/04/2004, Indraraj was going towards his house on bicycle. At about 05:40 hours, near Churdi Fata at Tirora, one white TATA Sumo came in high speed and gave a dash to Indraraj from the backside. He received multiple injuries and died on the spot. ii. Respondent nos.1 & 2 are the widow and son of deceased Indraraj. According to them, at the relevant time, respondent no.3 was driving the vehicle in a rash and negligent manner. The vehicle was insured with the appellant. It was submitted that the driver- cum-owner and insurer were jointly and severally liable to pay compensation under Section 166 of the Motor Vehicles Act. iii. On quantum, submission was that Indraraj was working as High School Teacher in Shri Sant Gnyaneshwar High School, Bhiriya, Tirora and was getting Rs.11,115/- per month. He was the sole breadwinner in the family. At the time of death, he was 45 years old. Because of his untimely death, they had to face hardship and suffered pain and mental agony. They were also deprived of love and affection. On all counts, claimants restricted compensation to the tune of Rs.20.00 lacs with interest thereon. iv. The driver-cum-owner of the vehicle resisted the claim vide written statement [Exh.23]. He raised defence of total denial and submitted that his vehicle was not involved in the accident. According to him, police has falsely implicated him in a criminal case though he is not responsible for causing the accident. v. Appellant-insurance company vide written statement [Exh.21] denied the claim. It was submitted that the vehicle was not involved in the accident. F.I.R. was registered against unknown vehicle. As identity of vehicle is not known, liability cannot be fastened on insurance company. It was contended that driver was not holding a valid and effective driving licence and for breach of terms and conditions of policy, claim against insurance company needs to be dismissed. vi. On the basis of rival contentions, Tribunal framed issues at Exh.24. Claimant no.1 - Panchsheela, widow of deceased, examined herself. In addition to her evidence, claimants examined Ashok Meshram as an eye-witness to the accident. Reliance was also placed on police papers, insurance policy and other documentary evidence to substantiate the claim of compensation. Considering the documentary evidence, Tribunal came to the conclusion that accident occurred due to rash and negligent driving of vehicle No. MH-26/E/0897 and held the driver-cumowner and insurer liable to pay compensation along with interest thereon as stated in paragraph 1 above. Being aggrieved by this judgment and award, insurer has challenged the same in this appeal.
(3.) Heard Shri D.N. Kukday, learned Counsel for appellant. It is submitted that the identity of vehicle has not been established and the Tribunal wrongly came to the conclusion that vehicle insured with the appellant was involved in the accident. The learned Counsel referring to the police papers and evidence of an eye-witness to the accident submitted that there is no whisper in the F.I.R., spot-panchnama and the evidence of eye-witness that the accident was caused by the vehicle insured with the insurance company. Learned Counsel submitted that driver of the vehicle has been acquitted in a criminal case mainly on the ground that identity of vehicle has not been established. In support thereof, learned Counsel placed on record copy of certified copy of judgment in Summary Criminal Case No.746/2004 passed by the learned Judicial Magistrate First Class, Tirora on 10/12/2013. The said copy is marked as "X" for the purpose of identification.;


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