Bombay High Court
The Hdfc Ergo General Ins. Co. … vs Smt. Varsha Suresh Sontakke And … on 2 March, 2020
Bench: M. G. Giratkar
1 fa262.20.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR FIRST APPEAL NO.262 OF 2020 The HDFC Ergo General Insurance Co. Ltd., through its Branch Manager, having its Office at Shriram Towers, Sadar, Nagpur, Tq. and District Nagpur. ………. APPELLANT // VERSUS // 1.Smt. Varsha Suresh Sontakke, Aged about 38 years, Occ. Household. 2.Vansh Suresh Sontakke, Aged about 9 years, Occ. Nil, Minor through his natural guardian mother/respondent no.1. 3.Wachalabai Namdeo Sontakke, Aged about 22 years, Occ. Education.::: Uploaded on – 02/03/2020 ::: Downloaded on – 04/03/2020 04:01:21 ::: 2 fa262.20.odt 4.Namdeo Laxman Sontakke, Aged about 72 years, Occ.Nil. All r/o. Village Ajaypur, Tq. and District Chandrapur. 5.M/s.Maheshwari Transport Company, Through its Proprietor, Age Major, Occ. Business, r/o. Near Saibaba Mandir, Civil Lines, Chandrapur, Tq. and District Chandrapur. 6.Pappu Rambahadur Prasad, Aged 35 years, Occ. Driver, r/o. Maheshwari Transport Company, Near Saibaba Mandir, Civil Lines, Chandrapur, Tq. and District Chandrapur. ………. RESPONDENTS ____________________________________________________________ Mr.H.N.Verma, Advocate for the Appellant. Mr.Ashish Kadukar, Advocate for Respondent Nos.1 to 4. ____________________________________________________________ ****** Date of reserving the Judgment : 18.2.2020. Date of pronouncement of the Judgment : 2.3.2020. ******** CORAM : M.G.GIRATKAR, J. JUDGMENT :
1. Heard Mr.H.N.Verma, learned Counsel for the appellant and Mr.Ashish Kadukar, learned Counsel for::: Uploaded on – 02/03/2020 ::: Downloaded on – 04/03/2020 04:01:21 ::: 3 fa262.20.odt respondent nos. 1 to 4. The parties are referred as they were before the Claims Tribunal.

2. Admit. Heard finally with the consent of learned Counsel for the parties.

3. The facts giving rise to the present appeal, in short, are as under :

On 2.10.2004 at about 6.00 p.m., deceased Suresh Namdeo Sontakke was proceeding on his Motorcycle bearing registration No.MH-34 AK-0885 towards village Majri where his brother-in-law resides. When he reached near Urjagram on Chandrapur-Nagpur road, the offending truck bearing registration No.MH-34 AB-4061 was standing on the road in idle condition without any indicator and sign. Deceased Suresh could not see the truck and dashed to the said offending truck. The deceased sustained injury to his head and other vital parts of body. He was taken to the General hospital, Chandrapur where he was declared dead. The said accident occurred due to rash and negligent act of driver of the offending truck no.MH-34 AB- 4061. The said truck was owned by respondent no.2. The said truck was driven by respondent no.3. It was insured by::: Uploaded on – 02/03/2020 ::: Downloaded on – 04/03/2020 04:01:21 ::: 4 fa262.20.odt respondent no.1 (appellant herein). There was no one on behalf of the deceased on the spot or nearby the spot at the time of accident. Respondent no.3/driver of the offending truck lodged false report. The police registered offence vide Crime No.238 of 2014 against deceased Suresh. The police prepared false panchanama. Though there was no fault on the part of the deceased, he was shown as accused.

4. The legal heirs of deceased filed Claim Petition claiming compensation against the owner, driver and Insurance Company. The Insurance Company filed Written Statement and denied the claim. It was submitted by respondent no.1 (appellant herein) that the accident took place due to rash and negligent act of the deceased himself and therefore, the Insurance Company is not liable to pay any amount of compensation.

5. Respondent nos. 2 and 3 were served, but they did not appear before the Tribunal. They were proceeded ex-parte. The Claims Tribunal framed issues at Exh.14. The claimant Varsha examined herself at Exh.15, witness namely Ashish Sudhakar Pimpalshende at Exh.32 and closed the case vide Pursis Exh.35. Respondent no.1 has only examined Police Head::: Uploaded on – 02/03/2020 ::: Downloaded on – 04/03/2020 04:01:21 ::: 5 fa262.20.odt Constable Ramesh Shankar Turankar at Exh.45. After hearing both the parties, the Claims Tribunal came to the conclusion that the accident took place due to negligent act of driver of the truck. The truck was parked on the road without any parking light, indicator etc. The deceased could not notice the truck and therefore, the accident took place. Learned Claims Tribunal allowed the Claim Petition and directed respondent nos. 1 to 3 to pay compensation of Rs.30,50,000/- jointly and severally along with interest @ 9% p.a. from the date of filing of petition till realisation of the whole amount. Being aggrieved thereby, this appeal is filed by the Insurance Company.

6. Heard Mr.H.N.Verma, learned Counsel for the appellant. He has vehemently argued that the claimants have failed to prove that the accident took place due to rash and negligent act on the part of driver of the truck. Learned Counsel has pointed out F.I.R. and Spot Panchanama filed on record respectively at Exh. Nos. 16 and 17 and submitted that, as per these documents, the accident took place due to fault on the part of driver of the truck. The Spot Panchanama was prepared by H.C.Turankar. The appellant has examined H.C. Turankar. As per his evidence, accident took place due to rash and negligent driving of deceased himself. Learned Counsel Mr.Verma has::: Uploaded on – 02/03/2020 ::: Downloaded on – 04/03/2020 04:01:21 ::: 6 fa262.20.odt submitted that, in view of the F.I.R. and Spot Panchanama, the Insurance Company is not liable to pay any amount of compensation. Burden of proof is on the claimants to prove that the accident took place due to rash and negligent act of the respondent no.3 (driver). In support of his submission, learned Counsel for the appellant pointed out the following Judgments : 1.Surender Kumar Arora and another .vs. Manoj Bisla and Others, (2012) 4 SCC 552. 2.Raj Rani and Ors. vs. Oriental Insurance Co. Ltd. And Others, 2009 ACJ 2003. 3.Oriental Insurance Co. Ltd. vs. Premlata Shukla and Others, 2007 AIR SCW 3591. 4.Judgment in First Appeal No.581 of 2001, Ashabai w/o. Ashok Pawar and Others .vs. Sayad Shoukat s/o. Chandsab and Others delivered by the Aurangabad Bench of this High Court dated 11th April, 2016.
7. Mr.Ashish Kadukar, learned Counsel for respondent nos. 1 to 4 has strongly supported the impugned Judgment. He has pointed out time of Spot Panchanama and the time of lodging report in the Police Station. As per his submission, Spot panchanama was prepared at 6.30 p.m. The accident took place::: Uploaded on – 02/03/2020 ::: Downloaded on – 04/03/2020 04:01:21 ::: 7 fa262.20.odt at about 6.00 p.m. The report was lodged at about 9.10 p.m. Therefore, it is clear that H.C. Turankar prepared false document i.e. Spot Panchanama only to support the driver of the offending truck. The learned Counsel has pointed out material contradictions in the Spot Panchanama. As per the map, the truck was shown on the road going from Nagpur to Chandrapur whereas as per the contents of panchanama the accident took place on Chandrapur-Nagpur road. Learned Counsel has pointed out evidence of H.C. Turankar and submitted that he has not stated in his evidence or in the panchanama that the parking lights and indicators of the truck were on. The Spot panchanama was prepared prior to lodging the report. This itself shows that it was prepared as per say of driver of the truck. The driver of the truck intentionally avoided his liability. He has given false information to save himself because had the offence been registered against him, he could have been prosecuted by police.

8. Mr.Kadukar, learned Counsel has submitted that the driver of the offending truck i.e. respondent no.3 was not examined before the Claims Tribunal. Therefore, the evidence of H.C. Turankar who had prepared false panchanama is not reliable. The learned Tribunal has recorded its finding in that::: Uploaded on – 02/03/2020 ::: Downloaded on – 04/03/2020 04:01:21 ::: 8 fa262.20.odt respect in para nos. 16, 17 and 18 of the Judgment. At last, it is submitted that the appeal is devoid of merits and hence liable to be dismissed.

9. In support of his submissions, Mr.Kadukar, learned Counsel has pointed out the following decisions : a) Archit Saini and Others .vs. The Oriental Insurance Company Ltd. and Others, Civil Appeal Nos.7300- 7309 of 2016, decided on 9.2.2018. b) Jatarbhai Shamjibhai Ganvit and Others .vs. Manojkumar Pratapbhai Chaudhary and Others, 2019 ACJ 2230. c) Judgment delivered by this Bench in National Insurance Company Ltd. vs. Mansi Swapnil Deokar and Others, First Appeal No.533 of 2014, decided on 20.6.2019.

The learned Counsel also pointed out Rules of the Road Regulations, 1989.

10. There is no dispute about the accident nor about the Insurance Policy etc. The only dispute is whether the accident took place due to rash and negligent driving of the deceased::: Uploaded on – 02/03/2020 ::: Downloaded on – 04/03/2020 04:01:21 ::: 9 fa262.20.odt himself or due to rash and negligent act of driver of the offending truck.

11. There was nobody on behalf of deceased at the time of incident. He was alone proceeding towards Majri. He was going on Chandrapur-Nagpur road. When he reached near Urjagram, he could not notice the stationery truck and dashed to the said truck and died due to said accident.
12. The driver of the truck himself lodged report. It appears that he managed the police machinery. This is clear from the F.I.R. and Spot Panchanama (Exh. Nos. 16 and 17 respectively). When Police Station, Bhadravati received information of the accident at about 9.30 p.m, then how Police Head Constable Turankar reached the spot at about 6.30 p.m.. The Spot Panchanama (Exh.17) was started at about 6.30 p.m. and completed at about 7.15 p.m. Therefore, it is clear that the Spot Panchanama was prepared before lodging report. The contents of Spot Panchanama shows that the deceased was going from Chandrapur to Nagpur on his motor cycle no.MH-34 AK-0885. The said motor cycle dashed the stationery truck which was standing on the road. But, the map in the Spot panchanama shows that stationery truck was standing on::: Uploaded on – 02/03/2020 ::: Downloaded on – 04/03/2020 04:01:21 ::: 10 fa262.20.odt Nagpur to Chandrapur road. As per contents of Spot panchanama, the spot of incident was shown from Nagpur to Chandrapur road and not from Nagpur to Chandrapur road. Therefore, it appears that H.C. Turankar has not stated the real facts about the spot of incident in the Spot panchanama. It appears that he has prepared this document on the say of driver of the offending truck. The contents of Spot panchanama do not show that the offending truck was having parking lights, Indicator etc. Therefore, it is clear that H.C. Turankar prepared Spot panchanama on the say of driver of the truck. The Spot panchanama was prepared before receipt of any information by the police. Nothing is on record to show that H.C. Turankar was informed by any person about the accident before lodging report at about 9.10 p.m. The accident took place at about 6.00 p.m. The question arise as to how H.C. Turankar reached the spot of incident at 6.30 p.m. and prepared Spot panchanama.
13. The driver of the offending truck, who was rash and negligent while parking the truck on the road, naturally shifted his negligence on the deceased. If he would have stated the real facts, he would have been prosecuted and therefore, it cannot be expected from the offending/guilty person to state::: Uploaded on – 02/03/2020 ::: Downloaded on – 04/03/2020 04:01:21 ::: 11 fa262.20.odt against himself. Therefore, the report lodged by driver of the offending truck cannot be relied on.

14. The burden of proof is not so heavy in Claim Petitions as like Criminal or Civil proceedings. It is a summary proceeding to be decided expeditiously. In a Summary proceeding, the Court has to record substance of evidence. Detail evidence is not required in the summary proceedings.

15. Mr.Verma, learned Counsel has pointed out Judgment of Hon’ble Apex Court in the case of Oriental Insurance Co. Ltd. vs. Premlata Shukla and Others, 2007 AIR SCW 3591. The facts in the cited decision is very much different. In the cited decision, F.I.R. was lodged by one of the occupants of Tempo Trax. Investigation on the basis of said F.I.R. for commission of offence under Section 304-A of Indian Penal Code was registered against driver of the said offending truck. During the investigation, the truck could not be traced out. The case was closed. The Claim Petition was filed before the Motor Accident Claims Tribunal against the driver, owner and Insurance Company with which the Tempo Trax was insured.::: Uploaded on – 02/03/2020 ::: Downloaded on – 04/03/2020 04:01:21 :::
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16. The facts of the cited decision itself show that the report was lodged by an independent person, who was occupant and not driver of the Tempo Trax. The Claim Petition was filed against Tempo Trax and Insurance Company only because the offending truck was not traced out. In the present case, the report was lodged by the driver of offending truck himself. The respondents were at liberty to examine the driver of the offending truck who lodged report against the deceased, but the driver of the truck was not examined. Therefore, the above cited decision in the case of Oriental Insurance Co. Ltd. is not applicable to the case in hand.

17. Mr.Verma, learned Counsel has pointed out decision in First Appeal No.581 of 2001, 11th April, 2016 by the Aurangabad Bench of this Court. From the reading of the cited Judgment, it is clear that the truck was stopped near Octroi post for the purpose of paying octroi. There was also no dispute that there was Octroi post near the spot of incident. The averments in the F.I.R. which was promptly lodged by the Octroi Superintendent working on the said Octroi post reveal that, at the relevant time, the driver of the offending truck, after paying the octroi, was proceeding towards his truck and in the meantime, motorcyclist rammed into the said truck from the rear::: Uploaded on – 02/03/2020 ::: Downloaded on – 04/03/2020 04:01:21 ::: 13 fa262.20.odt side. Therefore, this Court has held that the respondents-owner/ driver/Insurance Company of truck were not liable to pay any amount of compensation.

18. The facts in the above cited decision in First Appeal No.581 of 2001 are very much different. An independent person who had no interest in the offending vehicle lodged report stating the real facts. The report in the present case was lodged by the driver of the offending truck. The natural conduct of a human being is to hide the crime. The driver of the truck who parks his vehicle on a highway without parking lights and indicators on and if his negligence results in an accident, he cannot be expected to disclose the real facts which can make him face trial. There was nobody on behalf of the deceased to lodge report. The driver of the offending truck himself lodged report stating about negligence of the deceased. The evidence on record in respect of F.I.R. and Spot Panchanama clearly show that the driver of the offending truck managed the Police Authorities and prepared the false documents. The material contradictions as observed above clearly show that the Spot panchanama was prepared as per say of driver of the offending truck. Therefore, the above cited decision is not applicable to the case in hand.
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19. Mr.Verma, learned Counsel pointing out the decision in the case of Raj Rani and Others .vs. Oriental Insurance Co. Ltd. (supra) has submitted that, even if it is held that the truck was parked on the road, then also it was a contributory negligence on the part of the deceased. Nothing is on record to show that the deceased contributed to the accident. The accident took place due to parking of the truck without any parking lights or indicators and therefore, it cannot be said that the deceased contributed to the accident. Hence, the above cited decision in the case of Raj Rani is not applicable to the case in hand.
20. Mr.Verma, learned Counsel for the appellant has further pointed out decision in the case of Surender Kumar Arora and another .vs. Manoj Bisla and Others (supra). In the said case, it was the finding of the Court that there was no any evidence by the side of the claimant to show that the driver of the offending vehicle was rash and negligent while driving the said vehicle. In para 9 of the said Judgment, it is observed as under :
“9. Admittedly, the petition filed by the claimants was under Section 166 of the Act and not under Section 163-A of the Act. This is not in dispute. Therefore, it was the entire responsibility of the::: Uploaded on – 02/03/2020 ::: Downloaded on – 04/03/2020 04:01:21 ::: 15 fa262.20.odt parents of the deceased to have established that Respondent 1 drew the vehicle in a rash and negligent manner which resulted in the fatal accident. Maybe, in order to help Respondent 1, the claimants had not taken up that plea before the Tribunal. Therefore, the High Court was justified in sustaining the judgment and order passed by the Tribunal. We make it clear that if for any reason, the claimants had filed the petition under Section 163-A of the Act, then the dicta of this Court in Kaushnuma Begum {(2001) 2 SCC 9 : 2001 SCC (Cri) 268} would have come to the assistance of the claimants.
21. The Hon’ble Apex Court has held that once the claimants approach the Tribunal under Section 166 of the Act, they have necessarily to take upon themselves the burden of establishing the negligence of driver or owner of the vehicle. From reading of Para no.9 of the said Judgment, it appears that the claimants have not stated anything against the driver of the vehicle. In the present case, the claimants have specifically stated about the rash and negligent act of the driver of the offending truck and therefore, the above cited decision in the case of Surender Kumar Arora and another .vs. Manoj Bisla and Others is not applicable to the case in hand.
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22. Learned Counsel Mr.Kadukar has pointed out the decision of Apex Court in the case of Archit Saini and Others vs. The Oriental Insurance Co. Ltd and Others (supra), wherein the Hon’ble Apex Court has held as under :
“8……..the approach of the High Court in reversing the conclusion arrived at by the Tribunal on issue No.1 has been very casual, if not cryptic and perverse. Indeed, the appeal before the High Court is required to be decided on fact and law. That, however, would not permit the High Court to casually overturn the finding of fact recorded by the Tribunal. As is evident from the analysis done by the Tribunal, it is a well considered opinion and a plausible view. The High Court has not adverted to any specific reason as to why the view taken by the Tribunal was incorrect or not supported by the evidence on record. It is well settled that the nature of proof required in cases concerning accident claims is qualitatively different from the one in criminal cases, which must be beyond any reasonable doubts. The Tribunal applied the correct test in the analysis of the evidence before it. Notably, the High Court has not doubted the evidence of PW7 as being unreliable nor has it discarded his version that the driver of the Maruti Car could not spot the parked Gas Tanker due to the flash lights of the oncoming traffic from the front side. Further, the Tribunal also adverted to the::: Uploaded on – 02/03/2020 ::: Downloaded on – 04/03/2020 04:01:21 ::: 17 fa262.20.odt legal presumption against the driver ofthe Gas Tanker of having parked his vehicle in a negligent manner in the middle of the road. The Site Plan (Ext.P45) reinforces the version of PW7 that the Truck (Gas Tanker) was parked in the middle of the road……..” 5………..24. The arguments of learned counsel for respondent that PW7 Sohan Lal has stated in his cross-examination that there was no fog at that time and there were lights on the Dhaba and the truck was visible to him due to light of Dhaba and he was standing at the distance of 70 feet from the truck being road between him and the truck and he noticed at the car when he heard voice/sound caused by the accident so the respondent no.1 is not at all negligent in this accident but these submissions will not make the car driver to be in any way negligent and cannot give clean chit to the driver of the gas tanker because there is a difference between the visibility of a standing vehicle from a place where the person is standing and by a person who is coming driving the vehicle because due to flash lights of vehicles coming from front side the vehicle coming from opposite side cannot generally spot the standing vehicle in the road that too in nights time when there is neither any indicator or parking lights nor blinking lights nor any other indication given on the back of the stationed vehicle, therefore, the driver of the::: Uploaded on – 02/03/2020 ::: Downloaded on – 04/03/2020 04:01:21 ::: 18 fa262.20.odt car cannot be held to be in any way negligent rather it is the sole negligence on the part of the driver of the offending Gas Tanker as held in Ginni Devi and others’case (2008 ACJ 1572), Mohan Lal’s case (2007 1 ACC 785 (Allahabad). It is not the case of the respondent that the parking lights of the standing truck were on or there were any other indication on the back side of the vehicle standing on the road to enable the coming vehicle to see the standing truck. The other arguments of learned counsel for respondent no.3 that the road was sufficient wide road and that the car driver could have avoided the accident, so the driver of the car was himself negligent in causing the accident cannot be accepted when it has already been held that the accident has been caused due to sole negligence of the driver of the offending stationed truck in the busy road……”
23. Learned Counsel further pointed out decision of this Court in the case of National Insurance Co. Ltd. vs. Mansi Swapnil Deokar and Ors. (supra), wherein this Court has observed in para no.8 as under :
” The Hon’ble Apex Court in the above cited Judgment (Archit Saini and another .vs. Oriental Insurance Co. Ltd. and Ors.) has held that when the stationery vehicle is parked without any indicator or parking lights on road, it cannot be said that there::: Uploaded on – 02/03/2020 ::: Downloaded on – 04/03/2020 04:01:21 ::: 19 fa262.20.odt was contributory negligence on the part of the deceased. In view of the above cited Judgment which is similar to the facts of the present case, It cannot be said that the deceased was negligent while driving the vehicle….. ”
24. In the present case also, there is no evidence to show that, at the time of accident, the parking lights or indicators of the offending truck were on. Though the contents of the report show the same, the contents of Spot panchanama, which was immediately prepared after the incident, do not show that the parking lights or indicators of the offending truck were on. The evidence of H.C. Turankar also does not show that the said truck was parked having parking lights with indicators etc. On the contrary, there are material contradictions in the Spot panchanama about the spot of incident etc. It appears that respondent no.3 lodged false report when he came to know that he would be prosecuted for the said offence. He managed H.C. Turankar, got the Spot panchanama prepared first and thereafter, lodged report. There is nothing on record to show that how H.C. Turankar came to know about the accident. The accident took place at 6.00 p.m. and he immediately reached the spot at 6.30 p.m. The information was received by Police Station at about 9.10 p.m. It appears that the driver of the truck lodged a false report against the deceased.::: Uploaded on – 02/03/2020 ::: Downloaded on – 04/03/2020 04:01:21 :::
20 fa262.20.odt Learned Claims Tribunal has rightly recorded its finding. There is no merit in the appeal. The appeal is, therefore, dismissed with no orders as to costs.

JUDGE [jaiswal]::: Uploaded on – 02/03/2020 ::: Downloaded on – 04/03/2020 04:01:21 :::

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