Bombay High Court
Shriram General Insurance Company ... vs Shri.Sunil Vithoba Pawar And Anr on 18 February, 2020
Author: R.D.Dhanuka
Bench: R.D.Dhanuka
ppn 1 2.fast-15567.17 & ors..doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL (ST.) NO.15567 OF 2017
ALONG WITH
CIVIL APPLICATION NO.3568 OF 2017
ALONG WITH
CIVIL APPLICATION NO.497 OF 2019
ALONG WITH
CIVIL APPLICATION NO.498 OF 2019
Shriram General Insurance Co. Ltd. through
Legal Manager Mr.Sagar Gangurde .. Appellant/Applicant
Vs.
Sunil Vithoba Pawar & Anr. .. Respondents
ALONG WITH
FIRST APPEAL (ST.) NO.15531 OF 2017
ALONG WITH
CIVIL APPLICATION NO.3557 OF 2017
ALONG WITH
CIVIL APPLICATION NO.639 OF 2019
ALONG WITH
CIVIL APPLICATION NO.640 OF 2019
Shriram General Insurance Co. Ltd. through
Legal Manager Mr.Sagar Gangurde .. Appellant/Applicant
Vs.
Geeta Tanaji Vidyasagar & Anr. .. Respondents
ALONG WITH
FIRST APPEAL (ST.) NO.15561 OF 2017
ALONG WITH
CIVIL APPLICATION NO.3560 OF 2017
ALONG WITH
CIVIL APPLICATION NO.518 OF 2019
ALONG WITH
CIVIL APPLICATION NO.519 OF 2019
Shriram General Insurance Co. Ltd. through
Legal Manager Mr.Sagar Gangurde .. Appellant/Applicant
Vs.
Santosh Dattaram Gurav & Ors. .. Respondents
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ALONG WITH
FIRST APPEAL (ST.) NO.15480 OF 2017
ALONG WITH
CIVIL APPLICATION NO.3591 OF 2017
ALONG WITH
CIVIL APPLICATION NO.3285 OF 2019
ALONG WITH
CIVIL APPLICATION NO.3286 OF 2019
Shriram General Insurance Co. Ltd. through
Legal Manager Mr.Sagar Gangurde .. Appellant/Applicant
Vs.
Kumar Yash Tanaji Vidyasagar & Anr. .. Respondents
ALONG WITH
FIRST APPEAL (ST.) NO.15488 OF 2017
ALONG WITH
CIVIL APPLICATION NO.3603 OF 2017
ALONG WITH
CIVIL APPLICATION NO.625 OF 2019
ALONG WITH
CIVIL APPLICATION NO.626 OF 2019
Shriram General Insurance Co. Ltd. through
Legal Manager Mr.Sagar Gangurde .. Appellant/Applicant
Vs.
Santosh Dattaram Gurav & Ors. .. Respondents
ALONG WITH
FIRST APPEAL (ST.) NO.24564 OF 2014
ALONG WITH
CIVIL APPLICATION NO.1387 OF 2015
Shriram General Insurance Co. Ltd. through
Legal Manager Mr.Sagar Gangurde .. Appellant/Applicant
Vs.
Narendra Sunil Mohite & Anr. .. Respondents
---
Mr.Nikhil Mehta i/by M/s.KMC Legal Venture for the appellant in all
first appeals.
Mr.T.J. Mendon for the respondents in all first appeals except
FAST/24564/2014.
---
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CORAM : R.D.DHANUKA, J.
DATE : 18th February 2020 P.C.:
. First Appeal (St.) No.24564 of 2014 and Civil Application Nos.1387 of 2015 are not on board, taken on board.
2. By the First Appeal (St.) No.15567 of 2017 filed under Section 173 of the Motor Vehicles Act, 1988, the appellant (original insurer) has impugned the judgment and award dated 23rd December 2016 passed by the MACT, Mumbai directing the appellant and the opposite party-Rajesh Fernandes to jointly and severally pay a sum of Rs.1,53,852/- inclusive of NFL amount to the respondent no.1 with interest @7.5% p.a. from the date of claim application till realisation.
3. By consent of the appellant and the respondent nos.1 & 2, First Appeal is heard finally at the stage of admission. Some of the relevant facts for the purpose of deciding this First Appeal are as under : -
4. It was the case of the respondent no.1 (original applicant) that on 16th November 2010, he along with his family members were proceeding towards Khed in Motor Car No.MH-04-CE-2191 on Mumbai- Goa Highway. The driver of the said motor car lost his control over the car and gave dash to road side wall and fell into canal. As a result of the ::: Uploaded on - 03/03/2020 ::: Downloaded on - 10/06/2020 10:02:16 ::: ppn 4 2.fast-15567.17 & ors..doc said accident, the respondent no.1 sustained grievous injuries and was hospitalized.
5. The respondent no.1 made a claim for compensation of Rs.2 lakhs with interest @18% p.a. The said claim was resisted by the appellant by filing written statement. It was the case of the appellant that all the allegations raised in the claim application were false and misleading. The insurance policy relied upon by the driver of the offending vehicle was false, fake and misleading. The driver of the offending vehicle was not holding valid driving license at the time of accident.
6. Tribunal framed four issues for determination. The appellant examined himself and produced various documentary evidence. The appellant examined Legal Manager of the appellant in order to show that the insurance policy was false and fabricated. It was the case of the appellant that such type of policy was not at all issued by the insurer in the name of insured and policy bearing same number had been issued to a person by name Mr.Jaisaranraj M. The said witness produced photocopy of the said policy at Exhibit-36. Trial Court disbelieved the said document produced by the said witness and allowed the claim of the respondent no.1.
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7. Mr.Mehta, learned counsel for the appellant invited my attention to the findings rendered by the Tribunal and would submit that though the said witness examined by the appellant had produced photocopy of the cover note of the policy, the Tribunal though marked the said document as exhibit, has rendered perverse finding that the appellant had failed to prove that the said policy was fake, false and misleading.
8. The next submission of the learned counsel for the appellant is that merely because the appellant has not challenged the order passed by the Tribunal under Section 140 of the Motor Vehicle Act, 1988, that would not preclude the appellant from challenging the order passed under Section 166 of the Motor Vehicle Act, 1988.
9. In so far as the issue of quantification of claim is concerned, learned counsel for the appellant states that his client is not in a position to assail the said finding on merit.
10. Mr.Mendon, learned counsel for the respondent no.1, on the other hand, submits that onus was on the appellant to prove that the said policy was false, fake and misleading. The Tribunal has recorded various findings while rejecting the plea of the appellant that the appellant had ::: Uploaded on - 03/03/2020 ::: Downloaded on - 10/06/2020 10:02:16 ::: ppn 6 2.fast-15567.17 & ors..doc failed to prove such allegation made before the Tribunal while opposing the claim made by the respondent no.1.
11. A perusal of the findings recorded by the Tribunal indicates that it was a specific case of the appellant that the insurance policy relied upon by the driver of the offending vehicle was false, fake and misleading. It was the case of the appellant that no such policy was issued in the name of the owner of the offending vehicle. Though the appellant had examined a witness who was the Legal Manager of the appellant, the said witness produced a photocopy of the cover note only of the said policy. However, in his cross-examination, the witness Mr.Shankar Balaram Talekar admitted that he had investigated C.R.No.127/2010 and found that at the time of accident, the offending vehicle was covered by insurance with the appellant bearing Cover Note No.901226 and validity of the said cover note was from 19 th March 2010 till 11th March 2011. At the time of the said accident, the offending vehicle was covered by the said insurance policy.
12. Based on the said evidence of Mr.Talekar, Tribunal has rightly held that on the date of accident, the offending vehicle was covered by insurance policy with the appellant. Except producing photocopy of the cover note, the appellant did not bother to examine the said Mr.Jaisaranraj M., who according to the appellant, was the policy ::: Uploaded on - 03/03/2020 ::: Downloaded on - 10/06/2020 10:02:16 ::: ppn 7 2.fast-15567.17 & ors..doc holder of the said policy produced by the owner of the offending vehicle.
13. Tribunal has also recorded detailed reasons including the reason that the appellant had not produced outcome of the criminal complaint filed by the appellant in respect of such alleged false, fake and fabricated cover note. In my view, since it was the case of the appellant that the policy relied upon by the owner of the offending vehicle was false, fake and misleading, the onus was on the appellant to prove such allegation before the Tribunal. The appellant having failed to prove such case, the Tribunal is justified in rendering the findings based on the evidence produced by the appellant and also Mr.Talekar that the offending vehicle was covered by the said insurance policy in question. The finding of facts rendered by the Tribunal being not perverse cannot be interfered with by this Court in this First Appeal.
14. Mr.Mehta, learned counsel for the appellant did not point out any perversity in the findings based on the evidence produced before the Tribunal.
15. In so far as the issue of quantification of claim is concerned, I have perused the findings rendered by the Tribunal in paragraph 11 on issue of quantification of claim. In my view, compensation awarded by ::: Uploaded on - 03/03/2020 ::: Downloaded on - 10/06/2020 10:02:17 ::: ppn 8 2.fast-15567.17 & ors..doc the Tribunal is fair, just and reasonable compensation and in conformity with the principles of law laid down by the Supreme Court and by this Court in catena of the decisions. There is no merit in the submission of the learned counsel for the appellant in so far as quantification of claim is concerned.
16. In so far as the submission of the learned counsel for the appellant that this Court shall at least permit the applicant to recover the amount that is paid by the respondent no.1 from the owner of the offending vehicle is concerned, this Court is of the view of that the findings rendered by the Tribunal against the appellant are not perverse, no such relief can be granted to the appellant.
17. Appeal is devoid of merit and is accordingly dismissed. In view of dismissal of the First Appeal, pending civil applications do not survive and are accordingly disposed of.
18. The respondent no.1 would be at liberty to withdraw the entire amount with interest deposited by the appellant before the Tribunal on furnishing the authenticated copy of this order.
19. Learned counsel for the parties jointly state that the facts and grounds in the First Appeal (St.) Nos.15531 of 2017, 15561 of 2017, ::: Uploaded on - 03/03/2020 ::: Downloaded on - 10/06/2020 10:02:17 ::: ppn 9 2.fast-15567.17 & ors..doc 15480 of 2017, 15488 of 2017 and 24564 of 2014 are identical with the grounds raised in the First Appeal (St.) No.15567 of 2017. The judgment rendered by this Court would cover all the issues in all these matters and the view taken by this Court in aforesaid judgment would apply to the facts of all these cases. Statement is accepted.
20. The reasons recorded in the aforesaid judgment in First Appeal (St.) No.15567 of 2017 would apply to the facts of all these matters mentioned aforesaid. For the reasons recorded aforesaid, all these First Appeals are devoid of merit and are accordingly dismissed. In view of dismissal of the First Appeal, pending civil applications do not survive and are accordingly disposed of. No order as to costs.
21. It is made clear that the original claimants in all the aforesaid matters would be entitled to withdraw the decretal amount deposited by the appellant on the same conditions recorded aforesaid.
22. If there is any shortfall in recovering the amount by the appellant, the appellant shall deposit the said shortfall amount within two weeks from the date of computation of the said amount by the Tribunal . If there is any surplus left after payment of decreetal amount, the same shall be refunded to the appellant. Office is directed to transmit the ::: Uploaded on - 03/03/2020 ::: Downloaded on - 10/06/2020 10:02:17 ::: ppn 10 2.fast-15567.17 & ors..doc statutory deposit of Rs.25,000/- to the concerned Tribunal expeditiously. Parties as well as the concerned MACT to act on the authenticated copy of this order.
R.D.DHANUKA, J.
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