216-FA-1224-22.doc
S.S.Kilaje
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 1224 OF 2022
The Manager Appellant
The Bajaj Allianz General Insurance Company Ltd. (Original
GE Plaza, Airport Road, Yerwada, Pune-411006 Res.No.3)
Versus
1 Prabhavati Prakash Mohite
Age-61 Yrs., Occu. Household
2 Prakash Nivrutti Mohite
(Died during the pendency of Claim)
Res. No.1 and 2 residing at Nandre, Tal : Miraj,
Respondents
District : Sangli
(Respondent
3 Shri. Anil Vishwanath Chivate (Owner)
Nos. 1 and 2
Age – 43 Yrs., Occu. Business,
are original
R/o. Chikurde, Tal. Walawa, Dist. Sangli.
Claimants &
4 Shri. Santosh Kumar Ugare (Driver)
Res. Nos. 3
Age-43 Yrs., Occu. Job.
to 6 are
R/o. Dudhgaon, Tal. Miraj, Dist. Sangli
original Res.
5 Dipali Dashrath Magdum
Nos. 1, 2, 4
Age : 30 Years, Occ : Household
and 5
Residing at Shivajinagar, House No. 2819
respectively)
Behind Shirol Panchayat Samiti, Shirol,
Tal : Shirol, District : Kolhapur
6 KSL & Industrial Limited (Xylo owner)
A.154, Krishna Chambers, Dombivali East,
Mumbai – 421201
WITH
FIRST APPEAL NO. 1225 OF 2022
The Manager
The Bajaj Allianz General Insurance Company Ltd. Appellant
GE Plaza, Airport Road, Yerwada, Pune-411006 (Original Res.
No.2)
Versus
1 Shubhangi Tatyasaheb @ Kapil Patil
Age-30 Yrs., Occu. Household
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2 Ishwari Tatyasaheb @ Kapil Patil
Age – 7 Years
By and through guardian mother i.e. Respondent
No.1.
3 Padmini Vijay Patil
Age-62 Urs., Occu. Household
4 Vijay Vithoba Patil
Age-67 Yrs., Occu.
Respondent Nos. 1 to 4 are residing at Karnal,
Tal : Miraj, District : Sangli
5 Anil Vishwanath Chivate (Owner)
Age – 43 Yrs., Occu. Business,
R/o. Chikurde, Tal. Walawa, Dist. Sangli.
6 Shri. Santosh Kumar Ugare (Driver)
Age-43 Yrs., Occu. Job.
R/o. Dudhgaon, Tal. Miraj, Dist. Sangli
7 KSL & Industrial Limited (Xylo owner) Respondents
A.154, Krishna Chambers, Dombivali East,
Mumbai – 421201
WITH
FIRST APPEAL NO. 1226 OF 2022
The Manager
The Bajaj Allianz General Insurance Company Ltd. Appellant
GE Plaza, Airport Road, Yerwada, Pune-411006 (Original Res.
No.3)
Versus
1 Bharati Shivaraj Patil
Age-32 Yrs., Occ. Household
2 Shobhatai Bajirao Patil
Age – 66 Years
3 Bajirao Rajaram Patil
Age- 70 Yrs., Occu : None
Res. Nos.1 to 3 are residing at Karnal,
Tal : Miraj, District : Sangli
(Died during the pendency of the claim petition)
4 Anil Vishwanath Chivate (Owner)
Age -43 Yrs., Occu. Business,
R/o. Chikurde, Tal. Walawa, Dist. Sangli
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5 Shri. Santosh Kumar Ugare (Driver)
Age-43 Yrs., Occu. Job.
R/o. Dudhgaon, Tal. Miraj, Dist. Sangli
6 KSL & Industrial Limited (Xylo owner) Respondents
A.154, Krishna Chambers, Dombivali East,
Mumbai – 421201
WITH
FIRST APPEAL NO. 1227 OF 2022
The Manager Appellant
The Bajaj Allianz General Insurance Company Ltd. (Original
GE Plaza, Airport Road, Yerwada, Pune-411006 Res.No.3)
Versus
1 Varsharani Anantkumar Khot
Age – 39 Yrs., Occu. Housework
2 Swarup Anantkumar Khot
Age -15 Yrs., Occu. Education
3 Swara Anantkumar Khot
Age – 7 years,
Respondent Nos. 2 and 3 are minor
Hence by and through their natural guardian
i.e. mother Res. No.1 Varsharani Anantkumar Khot
4 Shantinath Balu Khot
Age – 67 Yrs., Occu
5 Shrimanti Shantinath Khot
Age – 89 Yrs., Occu. Housework
6 Rupabai Balu Khot
(Died during the pendency of the claim petition)
Respondent Nos. 1 to 6 are residing at Nandre,
Tal : Miraj, District : Sangli
7 Shri. Anil Vishwanath Chivate (Owner)
Age – 43 Yrs., Occu. Business,
R/o. Chikurde, Tal. Walawa, Dist. Sangli.
8 Shri. Santosh Kumar Ugare (Driver)
Age-43 Yrs., Occu. Job. Respondents
R/o. Dudhgaon, Tal. Miraj, Dist. Sangli
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………...
Mr. Sarthak S. Diwan Advocate for the Appellant in all appeals.
Mr. Akshay Kulkarni a/w. Mr. Avesh Ghadge, Advocate for Respondent
No.1 in all appeals.
CORAM : SHIVKUMAR DIGE, J.
DATE : 28th MARCH, 2024.
ORAL JUDGMENT :
1. All these four appeals are preferred by the appellant/Insurance
Company against the Judgment and Order passed by the Motor Accident
Claims Tribunal, Sangli (for short “the Tribunal”). As all the appeals are
out of the same accident and on same issue, hence I am deciding it by this
common Judgment.
2. It is contention of learned counsel for the appellant that
accident occurred due to sole negligence of driver of xylo vehicle. The
Tribunal has completely erred in not relying on panchanama produced on
record which specifically shows the manner in which the accident had
occurred. The learned counsel further submitted that the Tribunal has not
considered statements given by the witnesses before the police authorities.
The Tribunal has considered yearly income of deceased at Rs.8,73,898/-
which is on higher side without any evidence on record. Hence requested
to allow the appeal.
3. It is contention of learned counsel for respondents/claimants
that no evidence is produced on record by the appellant/Insurance
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Company to prove the negligence of the deceased. The claimants have
examined Santosh Daitya who was occupant in the xylo and who has
witnessed the accident. He has stated that accident occurred due to
negligence of the driver of tanker. But the Tribunal has considered 50%
contributory negligence of the deceased. Learned counsel further
submitted that driver of tanker did not step into the witness box to prove
the negligence of the deceased. Learned counsel further submitted that to
prove the income of deceased income tax returns provided on record on
the basis of income tax returns the Tribunal has considered income of the
deceased which is proper. The Tribunal has considered all the aspects
while passing Judgment and Order. No interference is required in it.
4. It is claimant’s case that on 14.09.2015 some persons from
Mumbai had come to Jaysingpur in Mahindra Xylo No. MH-05-AS-8741.
Deceased Mr. Anant Kumar was driving the said xylo vehicle. The
deceased in other appeals were passengers in the said vehicle. The said
jeep was proceeding from Jaysingpur to Karnal, Nandre. When the said
vehicle entered into the jurisdiction of village Udgaon near bus stand at
about 1.15 a.m. the driver of xylo gave signal to one tanker which was
proceeding ahead of it and he had attempted to overtake the said tanker
but the said vehicle did not give space to overtake. The deceased was
trying to overtake the said tanker at curve at relevant time said unknown
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tanker gave dash to the left side of xylo as a result of which the front left
side tyre of xylo got burst. The driver of xylo tried to control the jeep at
the relevant time one TATA Tanker No. MH-10-BR-1010 suddenly came
from Sangli side. It was in high speed and driver of the said vehicle was
driving it in rash and negligent manner. It gave dash to the xylo from
front side and dragged xylo towards left side of the road. Due to dash the
xylo turned turtle. The deceased and other three passengers died on the
spot. The offence was registered against the deceased.
5. To prove the negligence of the driver of tanker, the claimants
have examined CW-4 Sachin Jamkhandikar at Exhibit-65 who was
occupant of the xylo but he remained absent for cross examination hence
the Tribunal has not considered his evidence. The claimants have
examined Mr. Santosh Daitya - CW-5 he has stated that on 14.09.2015 at
about 12.30 pm he and his friends were returning to Nandre from Karnal,
he and Sachin Jamkhandikar had occupied the last seat in the xylo and
deceased Anantkumar was driving the said vehicle. Some of his friends
had occupied front and middle seat of the xylo. At about 1.15 am when
the xylo reached within the jurisdiction of village Udgaon near S.T.bus
stop, it was trying to overtake one unknown tanker by giving signal.
When the xylo was overtaking the said tanker on the slight curve, the said
tanker gave dash to the xylo to its left side as a result of which the xylo
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was got faltered, it lost its balance and the front left tyre of the xylo got
burst. The deceased driver was trying to control the said vehicle. At the
relevant time the offending tanker was coming from opposite direction.
Without attending to the circumstances of the road, the driver of tanker
did not take tanker to the side of the road and dashed against the xylo
which had already lost the control due to the dash given by unknown
tanker. The xylo toppled down towards southern side. However, the
offending tanker did not stop and dragged the xylo in the direction of
village Nrusinhvadi. The driver of tempo fled away from the incident spot.
He further stated that accident occurred due to negligence of driver of
tanker. He further stated that he received injuries in the accident. He was
admitted in the hospital. He was under shock of sudden death of his
friends. The police came to him and took his signature on the statement
which was not narrated by him. The police did not record his true
statement. He further stated that police recorded wrong statement in his
name to save the driver of tanker from criminal action. The police on the
basis of false investigation registered the crime against the deceased driver
of xylo. He further stated that he has stated the true facts of the accident
to the father of the deceased. The father of deceased Kapil Patil and
Shivraj Patil had filed a private complaint bearing No. SCC 101/2016
against the driver of tanker. In cross examination he admitted that when
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xylo was going towards Sangli, one tanker was going ahead of their
vehicle. He further admitted that the driver of xylo tried to overtake the
said tanker and the said tanker gave dash to front side of the xylo, the left
front tyre of xylo got burst. He further admitted that due to said dash the
xylo lost its balance. He further admitted that for considerable time the
driver of xylo was trying to overtake the said tanker and the driver of
tanker did not allow the xylo to overtake. He admitted that as the tanker
had given dash to the front side of the xylo and as a result of which the
left side tyre got burst. He further admitted that due to said dash the xylo
lost its balance. It dashed against the offending tanker. He volunteered
that the offending tanker gave dash to xylo. He further admitted that after
the accident he became unconscious.
6. The claimants have examined Rajendra Aadke CW-6 at Exhibit-
80. He stated that on the date of incident he was going in his vehicle from
Mumbai to Jaysingpur. At around 1.15 am he reached near Udgaon and
he saw the accident between the xylo jeep and milk tanker of Swabhimani
Milk Sangh. The tanker of Swabhimani Milk Sangh was belonging to
member of parliament Raju Shetty and police recorded his statement after
10 to 12 days after the accident. He had read the statement written by the
police. He informed the police that he had not seen accident but it is
mentioned in the statement that he had seen it but police told him that it
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is part of investigation. Thereafter, he signed on it. In cross examination
he admitted that he has not complained against the police officer about
taking signature on wrong statement. The respondents have examined
defence witness Investigating Officer Shamrao Kadam at Exhibit-95. He
has stated that he received information from police station about the
accident hence he reached to accident spot, he took out the dead person
from xylo jeep with help of people and admitted the injured in the
hospital. One Mr. Jahangir had given report to the police. As per his
report entry was taken in police diary. He recorded the statement of eight
witnesses on 14.09.2015. He recorded the statement of Santosh Daitya as
per his say. He recorded the statement of Rajendra on 15.09.2015. He
further stated that accident occurred due to negligence of the driver of
xylo. He has stated that the office of member of Parliament Raju Shetty is
at 200 ft. distance from the police station. He further stated that the
offending tanker was carrying milk of Swabhimani Milk Sangh. He further
stated that the driver of offending tanker did not report the accident to the
police. In cross examination he admitted that front portion of the tanker
and front portion of the xylo were damaged.
7. While dealing with the issue of negligence the Tribunal has
observed that the deceased driver of xylo was helpless to avoid the
accident after it was dashed by ongoing unknown tanker while overtaking
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it. Admittedly, there is collision between the xylo and the offending
vehicle. It was expected from driver of offending vehicle to show
reasonable care, precaution and vigilance demanded by the circumstances
but it was not taken by him. He did not step into the witness box nor
appellant/Insurnace Company did bother to examine him as a witness.
Considering the evidence on record the Tribunal has considered 50%
contributory negligence of driver of offending tanker and 50%
contributory negligence of deceased driver of xylo. I do not find infirmity
in it. In my view, front portion of both the vehicles were damaged it
shows that it was head on collision. The eye witness has stated that
accident occurred due to negligence of the driver of offending tanker. As
per view of National Insurance Company Ltd. Vs. Chamundeshwari and
Ors., 2021 ACJ 2558, weightage has to be given to the evidence led
before the Court than the contents of FIR. Hence, I do not see merit in the
contention that accident occurred due to sole negligence of the deceased
driver of xylo. The deceased in F.A. No. 1224 of 2022, F.A. No. 1225 of
2022 and F.A. No. 1226 of 2022 were occupants in the xylo car, so no
question of their contributory negligence arises.
7.1. It is contention of learned counsel for the appellant that the
Tribunal has considered income of the deceased in Appeal No. 1227 of
2022 on higher side. The Tribunal has considered annual income of the
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deceased at Rs.8,97,898/- as per last income tax returns. It is settled
principle of law that it should be as per the average of last three years
income tax returns. The average income of the deceased of last three
years comes to Rs.8,15,729/-, I am considering this income as income of
the deceased. After calculating by this amount the excess amount comes
to Rs. 2,95,085/-, the applicant-Insurance Company is entitled for this
amount.
It is contention of learned counsel for the appellant/Insurance
Company that income of the deceased in Appeal No. 1226 of 2022 is
considered on higher side. It is claimant’s case that deceased was working
as a Manager in Chaugule Industries at Sangli and he was earning salary
of Rs. 11,000/- per month and he was getting Rs.3,000/- from milk
business. To prove the income of the deceased the claimants have
examined Manager of Chaugule Industries – Priti. She has produced 10
salary slips of the deceased on record. It is at Exhibits-41 and 40.
Considering all the salary slips the Tribunal has considered average salary
of Rs.10,000/-. I do not find infirmity in it.
8. In view of the above, I pass following order.
ORDER
i. F.A. 1224 of 2022, F.A. 1225 of 2022 and F.A. 1226 of
2022 are dismissed.
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ii. F.A. No. 1227 of 2022 is partly allowed. The appellant is
permitted to withdraw Rs.2,95,085/- along with
proportionate interest.
iii. The claimants in all appeals are permitted to withdraw
deposited amount along with accrued interest.
iv. The statutory amount in all appeals along with accrued
interest be transferred to the Tribunal. Parties in the
respective appeals are permitted to withdraw it as per rule.
v. All pending applications, if any are disposed of.
(SHIVKUMAR DIGE, J.)
Digitally signed
SONALI by SONALI
SATISH KILAJE
SATISH
Date:
2024.05.09
KILAJE
11:40:31
+0530
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