Bombay High Court
Bajaj Allianz General Insurance Co. Ltd vs Meera W/O Raju Choudhary on 17 February, 2014
Author: K. U. Chandiwal
Bench: K. U. Chandiwal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 1921 OF 2013
WITH
CIVIL APPLICATION N. 9092 OF 2013
Bajaj Allianz General Insurance Co. Ltd.
Though it's Branch Manager,
2nd floor, Rajendra Chamber, ...Appellant
Adalat Road, Aurangabad
ig (Ori. R. No.2)
versus
1. Meera w/o Raju Choudhary,
Age 31 years, Occ. Household,
2. Vishal s/o Raju Choudhary,
Age 11 years, Occ. Minor,
3. Ganesh s/o Raju Choudhary,
Age 8 years, Occ. Minor,
Nos. 2 and 3 are minors, under
guardianship of their real mother
R. No.1 Meera w/o Raju Choudhary
4. Uttam s/o Gopinath Choudhary,
Age 55 years, Occ. Agriculture,
5. Sulabai w/o Uttam Choudhary, (Ori. Claimants)
Age 50 years, Occ. Agriculture
All R/o. Keligawhan, Tq. Badnapur,
District Jalna
6. Dilip s/o Sopanrao Arjune,
Age 42 years, Occ. Service as professor,
In J.E.S. College, Jalna
R/o. Newasekar Nagar, Mantha Road, (Ori. R. No.1)
Jalna, Tq. and district Jalna ...Respondents
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.....
Mr. S.G. Chapalgaonkar, advocate for the appellant
Mr. P.V. Ambade, advocate for R. Nos. 1, 4 and 5
Mr. A.R. Shinde, advocate for respondent No.6
.....
CORAM : K. U. CHANDIWAL, J.
DATED : 17th FEBRUARY, 2014 JUGMENT:-
1. Heard. Admit. Heard finally.
2. The award of Rs.6,22,000/- with interest @ 7.5% p.a. in M.A.C.P. No. 75 of 2011, recorded by the learned Member, M.A.C.T. Jalna dated 04.05.2013 is assailed by the Insurance Company.
3. On 8.5.2010, Raju Uttam Choudhary was driving his motorcycle with pillion rider. He was knocked by offending vehicle. F.I.R. vide Crime No. 63 of 2010, dated 8.5.2010 was registered at Badnapur police station against the unknown vehicle.
4. Police Inspector, Chandrakant, allegedly had instructions of Superintendent of Police, Jalna, carried further investigation and prosecuted owner of Maruti Zen car bearing registration MH-21-V-.541 (original respondent No.1 Dilip). Taking base of this, the learned Member relied upon evidence of said Chandrakant, for involvement of ::: Downloaded on - 01/03/2014 00:11:34 ::: fa1921.13 -3- vehicle, had recorded award fixing joint and several liability on owner of said vehicle alongwith Insurance Company.
5. Learned counsel for the appellant Insurance Company confined his submissions to involvement of vehicle and the inadequacy of the material to rope in said vehicle and consequently the Insurance Company.
6.
The fact remains, the matter hinges to the narration of Chandrakant, a Police Officer, who allegedly carried investigation.
Reading his evidence, it is illustrative that he has done nothing in the matter barring fling of final report. He says, having learnt by discreet sources of involvement of the vehicle, however, such discreet source or statement of any person under Section 161 of Cr.P.C. was not annexed to final report nor the said person was examined before the learned Member. There was no authorization to Police Inspector, Chandrakant to carry investigation in the matter, otherwise it was imperative for him to have disclosed the same in the final report or in his evidence.
7. The learned Judge has observed in para 13, as under:-
"13. PW-2 Chandrakant Savale is a P.I. of Local Crime Branch ::: Downloaded on - 01/03/2014 00:11:34 ::: fa1921.13 -4- Jalna. He has entered into witness box and said that investigation of Crime No. 63/2010 was entrusted to him and during the investigation, it was detected that respondent No.1 has caused the accident by his Maruti Zen car, and, accordingly said car came to be seized and after investigation he has submitted the charge sheet against respondent No.1 in the court of J.M.F.C. Badnapur. In the searching, cross examination taken by the learned advocate for the insurance company, respondent No.1 has admitted that initially investigation was carried by P.S. Badnapur, but, thereafter, as per oral direction of the Superintendent of Police, Jalna, investigation was entrusted to him. He has further admitted that on receiving secret information he detected culprit and seized the vehicle which has caused the accident in question. He has further admitted that he has not recorded any statement. Taking assistance of these admissions brought on record in the cross examination of PW 2 Chandrakant Savale, the learned advocate for the insurance company has strenuously urged before the Tribunal that when as per FIR dash was given by unknown vehicle and though matter pertains to P.S. Badnapur, but, investigation carried by PW-2 Chandrakant Savale, LCB Jalna. PW-2 Chandrakant Savale, is also not able to disclose source of secret information and he has also not recorded any statement shows that the claimants in collusion with police have falsely implicated respondent No.1 in a crime so as to get compensation from the insurance company. In support of his submission, the learned advocate for respondent No.2 has heavily relied on judgment of Karnataka High Court bearing M.F.A. No. 4003/2002, New India Assurance Company vs. G.N. Gopali Gouda and others decided on 5.7.2005. The facts of the cited case are that the petitioner therein was a police constable who has filed injury claim before the Motor Accident Claim Tribunal. The FIR was lodged by the eye witnesses stating petitioner drove a scooter in rash and negligent manner and dashed against a tree and got injured. But, in final report u/s 174 of Cr.P.C. one Laxminarayan a driver of auto ::: Downloaded on - 01/03/2014 00:11:34 ::: fa1921.13 -5- rickshaw indicated as accused to have caused the accident by dashing against the petitioner. The driver of the auto admitted guilty before the court and paid fine. Then claim petition for compensation was filed by the petitioner. It was stand taken by the insurance company that the prosecution of criminal case against auto driver is fabricated, concocted and false case in order to seek compensation for injuries sustained by the petitioner. In the circumstances, Hon'ble Karnataka High Court has found that material on record abundantly disclose that criminal prosecution launched against auto driver is only make believe version. The contention of the FIR strongly corroborates the version of the injured that auto rickshaw was not involved in the accident."
8. Thus, the observations of the learned Judge more lean to surmise and such capsizing evidence is not acceptable in legal parlance. In the result, the involvement of the vehicle itself was under
cloud and question mark, claimants failed to establish involvement of vehicle insured with appellant. The appellant-Insurance Company could not have been branded to face responsibility to answer the claim. The appeal allowed. The award in M.A.C.P. No. 75 of 2011 is set aside qua the appellant-Insurance Company. No costs.
9. Civil application disposed of.
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