Bombay High Court
United India Insurance Co.Ltd. Through … vs Smt. Sudesh Vijay Sethi And Ors on 19 March, 2025
HEMANT
2025:BHC-AS:16117
CHANDERSEN
SHIV
Digitally signed by
HEMANT H.C. SHIV 9.fa1668.19.doc
CHANDERSEN SHIV
Date: 2025.04.08
10:48:46 +0300 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.1668 OF 2019
United India Insurance Co. Ltd.
Pune Regional Office,
Through its Divisional Office,
Divisional Office VI,
Bank of India Building,
592, Sadashiv Peth
Pune 411 030 ... Appellant
vs.
1. Smt. Sudesh Vijay Sethi
Age 60 years, Occ. Household ...
2. Ms. Monika Vijay Sethi
Age 35 years Occ. Service
Both R/o Flat No.501,
Vasant Avenue, Near Sindu Park,
Pimple Saudagar,
Pune 411 027 ...
3. Mr. Sandeep Vasantrao Murkute
Age Major, Occ. Business
R/o At & Post:- Mulkhed
Tal. Mulshi, Dist Pune ... Respondent
Mr. Amol Gatne for the Appellant.
Mr. Yogesh Pande for the Respondent Nos.1 and 2.
CORAM : SHYAM C. CHANDAK, J.
DATE : 19th MARCH 2025
JUDGMENT :
. Present Appeal is directed against the Judgment and
Order dated 12th June 2019, in Motor Accident Claim Petition No.161
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of 2011, passed by the Motor Accident Claims Tribunal, Pune thereby
Respondent Nos.1 and 2 (“the claimants”) have been permitted to
recover an amount of Rs.1,07,64,173/- as compensation under Section
166 of the Motor Vehicles Act, 1988 (‘the Act’) along with accrued
interest at the rate of 7.5% per annum from the date of claim till
realization of the amount, jointly and severally from Respondent No.3
and the Appellant (Original Opponent Nos.1 and 2).
2) Record indicates that Appeal was dismissed on 4th March
2024 as against Respondent No.3 on account of failure to serve the
Respondent No.3. Thereafter, Appeal was listed for final hearing.
3) In view thereof, heard Mr. Gatne, the learned Advocate for
the Appellant and Mr. Pande, the learned Advocate for Respondent
Nos.1 and 2. Perused the record.
4) The said claim was filed by the claimants therein they
narrated that on 28th August 2010, at about 10 a.m., late Vishal
Sudesh Sethi (“deceased”) was proceeding on his motorcycle
(“M/cycle”) from Kalewadi towards Aundh from the left side of the
road, in a moderate speed and following traffic rules and regulations.
The deceased stopped the M/cycle on the signal of Rakshak Chowk,
Aundh, Pune. When the signal turned green, the deceased started to
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proceed ahead. At this juncture, a dumper bearing registration
No.MH-14/AS-7918 (“dumper”) came there from behind, driven in a
rash and negligent manner and, gave a dash to the M/cycle. As a
result, the deceased sustained injuries and died on the spot. On
receiving information of the accident, Sangvi Police Station registered
an offence under Sections 279, 304-A and 427 of I.P.C. and under
Section 119 and Section 177 of the Act against the dumper driver.
4.1) It was averred that the deceased had graduated in
Engineering (Computer Science) in the year 2005 which was followed
by Post Graduation in Telecom Management in 2007 from Symbiosis
Institute. It was averred that at the time of the accident the deceased
was serving with a telecom company, namely, ‘Hutch’, as a
Management Trainee, thereby he was drawing monthly salary of
Rs.75,000/-. Respondent Nos.1 and 2 are mother and sister of the
deceased and they were dependent on the income of the deceased.
Therefore, they prayed to award compensation in the sum of
Rs.1,00,00,000/-.
5) Respondent No.3 and the Appellant filed separate written
statements (Exh.17 & 24 respectively) and resisted the claim. Both
have not admitted and specifically denied all the material allegations,
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averments and submissions made against them in the claim,
including the cause of the accident. Further, they denied that the
deceased was working and earning as stated in the claim.
5.1) Respondent No.3 and the Appellant specifically contended
that at the relevant time and place, the dumper was stationary as
there was a ‘stop’ signal and the driver of the dumper was waiting.
Thereafter, the signal turn green and the dumper was proceeding
towards Senapati Bapat road. At that very juncture, the deceased
came from behind on his M/cycle and tried to overtake the dumper
from wrong side. As a result the M/cycle dashed against the left side
wheels of the dumper and the deceased sustained fatal injuries. Thus,
the deceased himself was responsible for the accident and his death.
In the alternative, it was contended that the deceased was also
responsible for contributory negligence which was on the greater side.
Additionally, the Appellant contended that the dumper was plied
without a fitness certificate and there was a breach of the policy terms
and conditions. Therefore, the Appellant was not liable to pay the
compensation.
6) In view thereof, the Tribunal framed the issues. To prove
the claim, the claimants adduced the evidence of Respondent No.1 on
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Affidavit (AW1/Exh.27). Additionally, they examined PW2-Saurabh
Ravindrapratap Sahi (Exh.59) and PW3-Kautilya Nikhil Desai
(Exh.75), who were employees of the company of the deceased.
6.1) In rebuttal, the Appellant adduce the evidence of DW1-
Gorakhnath Karriappa Manjalkar, driver-cum-owner of the dumper
(Exh.88); DW2-Mrs.Medha Pradeep Kajale, (Exh.102), Dy. Manager
of the Appellant, DW3-Mr.Dnyaneshwar Shankar Dombe (Exh.114),
clerk-RTO Pimpri Chinchwad, DW4-Mrs.Varsha Uttam Sakpal
(Exh.122), the police who was on duty at the time and the spot of the
accident and DW5-Sandeep Arun Bhosale (Exh.134), Motor Vehicle
Inspector.
7) Mr. Gatne, the learned Advocate for the Appellant, at the
outset, fairly submitted that the Appellant is not disputing the
quantum of the compensation awarded by the Tribunal. He submitted
that, in fact, no ground has been raised in the Appeal memo to
challenge the said quantum, claiming it to be excessive or exorbitant.
Similarly, Mr. Pande, the learned Advocate for the claimants stated
that the claimants are satisfied with the compensation amount.
Therefore, the question, i.e. whether the compensation is excessive or
inadequate is not involved in this Appeal.
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H.C. SHIV 9.fa1668.19.doc 8) However, the main controversy is whether the accident
occurred due to rash and negligent riding of the M/cycle by the
deceased himself or due to sole negligence of DW1-the dumper driver.
9) On the point of the accident, the evidence of Respondent
No.1 is that, at the relevant time the deceased had stopped at Rakshak
Chowk as the traffic signal was red. Then the signal turned green and
the deceased started to proceed ahead. At this juncture the dumper
came from behind driven in a high speed and rash and negligent
manner. As a result, the dumper dashed the M/cycle. To support this
evidence, Respondent No.1 relied upon the Final Report (Exh.38) and
the spot panchnama (Exh.39). Admittedly, the Respondent No.1 was
not an eye witness to the accident. Hence, the claimants were
depending upon the police papers to establish the negligence of the
driver of dumper.
10) In contrast, the evidence of DW1-Gorakhnath Manjalkar,
the dumper driver is that at the relevant time he was proceeding
towards Kalewadi by Senapati Bapat Road. When the dumper arrived
at Rakshak Chowk, the traffic signal was red. Therefore, he was
waiting for the green signal. At that juncture the deceased came from
behind and dashed against the rear tyre on the left side of the dumper
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and fell down.
11) DW4-Varsha Sakpal deposed that at the relevant time and
place, she and other police were present on duty as traffic police. The
dumper was halting at Rakshak Chowk. There were vehicles in front
of the dumper. The deceased came there riding on the M/cycle from
behind and dashed the dumper. As a result the deceased sustained
injuries and died.
12) PW5-Sandip Bhosale deposed that he was a Vehicle
Inspector at the R.T.O., Pimpari Chinchwad. On dated 30.08.2010 he
inspected the dumper and the M/cycle. Accordingly, he recorded the
Accident Report Form (Exhs.111 and 112 respectively). The Report
(Exh.112) mentions that the handle, fork and chassis of the M/cycle
were bend.
13) In view of the evidence of Respondent No.1, DW1 and
DW4, Mr. Gatne, the learned Advocate for the Appellant submitted
that Respondent No.1 did not witness the accident, therefore, her
claim cannot be relied upon that the accident occurred due to rash
and negligent driving of the dumper. He submitted that, the evidence
of DW1 and DW4 clearly show that the deceased tried to overtake the
dumper from its left side by riding his M/cycle in a high-speed and
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negligent manner. Therefore, the M/cycle dashed against the rear
wheel on the left side of the dumper. He submitted that the
M/cycle’s in high speed was easily discernible from the bent
condition of the handle bars, fork and chassis. He submitted that if
the deceased was not riding the bike in high speed, the said three
parts of the M/cycle would not have damaged so much. Mr. Gatne,
therefore, submitted that the finding of the Tribunal that the accident
occurred due to negligent driving of the dumper is incorrect.
14) In reply, Mr Pande, the learn Advocate for the claimants
submitted that the evidence of Respondent No.1 coupled with the
police papers clearly indicate that as soon as the signal turned green,
the deceased started to proceed ahead on his M/cycle. At that very
juncture, the dumper dashed the M/cycle forcefully, without any
reason. Therefore only the M/cycle suffered huge damage to its
handle, fork and the chassis. Mr. Pande submitted that, accordingly,
the witnesses including PW4 and other police present with her gave
their statement. As a result, investigation culminated into filing of
chargesheet against DW1 for causing the accident by driving his
dumper rash and negligently. He submitted that, the version of PW4
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in her examination in chief has been completely contradicted by her
statement (Exh.123) before the investigation officer. Therefore, the
Tribunal rightly held that the accident occurred due to negligent
driving of the dumper and the deceased was not at all responsible for
the accident, in any manner.
15) It is admitted fact that DW1 was prosecuted on allegations
that he caused this accident by driving the dumper in a rash and
negligent manner. This conclusion of the investigation was based on
the statements of the witnesses that at the time of the accident the
dumper and the M/cycle were proceeding in the same direction.
However, the dumper driver unnecessarily pressed the M/cycle
towards the left side. Consequently, the rear portion of the dumper
dashed the M/cycle and the deceased fell down. In the cross
examination DW1 admitted that the place where accident occurred, is
of heavy traffic. There, heavy vehicles ply on the middle of the road,
whereas, light vehicles move on the left side, especially, two wheelers.
However, DW1 has not explained as to why his dumper pressed the
M/cycle towards the left side particularly when the heavy vehicles
were plied from the middle of the road. Therefore, it is apparent that
DW1 drove the dumper without keeping proper lookout at the
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situation the road. Driving a heavy vehicle in such a manner is
dangerous to other road users. This simple aspect was ignored by
DW1. Therefore, the conclusion is inevitable that the accident
occurred due to rash and negligent driving of the dumper.
16) No doubt, DW4 supported the case of the Appellant.
However, in the cross examination DW4 admitted that the contents of
her statement (Exh.123) before the investigating officer are correct.
The plain reading of her statement suggests that it was supporting the
conclusion recorded by the investigating 0fficer in the chargesheet to
prosecute the DW1. The statement (Exh.123) of DW4 was recorded
immediately after the accident, which was her natural response to the
investigation made with her by the Investigating police. DW4 had no
reason to give a false statement to the police and attributing
negligence to DW1. Therefore, the evidence of DW4 is of no avail to
the Appellant.
17) The evidence of DW5 and his Accident Report Form
(Exh.112) clearly established that the handle, chassis and fork of
M/cycle were bent. Highlighting the said damage, Mr.Gatne, the
learned Advocate for the Appellant vehemently submitted that said
damage is sufficient to infer that the M/cycle was running in a very
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high speed and in that motion the M/cycle dashed against the rear
portion of the dumper. Therefore, there is no escape from the
conclusion that the accident occurred due to rash and negligent
driving of the M/cycle. However, said argument cannot be accepted
because compared to the dumper, the M/cycle was a very small
vehicle. Therefore, the parts of the M/cycle like handle, fork and
chassis cannot resist the forceful dash by the dumper. It is not the
case of DW1 that the police chargesheeted him with ulterior or
oblique motive.
18) DW3 is junior clerk, working with the RTO, Pimpari
Chinchwad. He produced an extract of the permit register (Exh.118)
in the name of Respondent No.3. The Appellant produced a
photocopy of the Fitness Certificate, i.e., document No.1 in the list
enclosed with the Application (Exh.89), seeking permission to
produce the document. Based on the photocopy of Fitness Certificate,
DW2 deposed that the Fitness Certificate of the dumper was expired
on dated 25.12.2008. Said certificate was renewed from dated
24.09.2010. He deposed that the dumper was plied without certificate
of fitness at the time of accident. DW2 deposed that the Appellant had
sent the letter (Exh.105), thereby Respondent No.3 was called upon
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by the Appellant to produce the Fitness Certificate. Said letter was
received to Respondent No.3 vide postal acknowledgment (Exh.106)
and tracking report (Exh.107). However, the said letter was not
complied with by the Respondent No.1. In this background Mr.Gatne,
the learned Advocate for the Appellant submitted that it was
established that the dumper was plied without the Fitness Certificate.
However, the Tribunal disbelieved that contention and erroneously
held that the Appellant and Respondent No.3 both are liable to pay
the compensation.
18.1) But the photocopy Fitness Certificate is not a certified
copy. Therefore, in my considered view mere evidence of DW2 is not
sufficient to hold that the dumper was plied without Fitness
Certificate.
19) In view of above discussion, I conclude that there is no
infirmity in the impugned Judgment and Order thereby calling for an
interference with the same to accept the case of the Appellant. As a
result, the Appeal fails and is liable to be dismissed.
19.1) Appeal is dismissed, accordingly.
(SHYAM C. CHANDAK,J.)
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