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Judgment
The appellants have filed the present First Appeal against the Judgment and order dated 25.07.2016 passed by the Motor Accident Claims Tribunal,
Nanded, in Motor Accident Claim Petition No.413 of 2010.
The appellants had filed the aforesaid claim petition under Section 166 of the Motor Vehicles Act, 1988 (herein after referred to as 'the Act')
claiming compensation on account of death of Abdul Khadir S/o. Abdul Wahed alleged to have been caused in a vehicular accident happened on
20.02.2010. It was the contention of the appellants that on 20.02.2010, while deceased Abdul Khadir was returning to his home on Motorcycle,
his Motorcycle was dashed by a Truck bearing registration No.MHÂ26 HÂ7885 at about 9:00 p.m. and in the accident so happened, he was
severely injured. The Truck which gave the dash fled from the spot.  Abdul Khadir while under treatment suffered death on 07.03.2010. It
was the further contention of the appellants that initially, though the First Information Report (FIR) was registered against the unknown vehicle, during
the course of investigation, it was revealed that the Truck bearing registration No.MHÂ26 HÂ7885 owned by present respondent No.1 was involved
in the alleged accident and the accident happened because of negligence of the driver of the said Truck. The appellants, therefore, filed theÂ
claim petition against the owner and insurer of the aforesaid Truck claiming compensation of Rs.50,00,000/Â.
The owner of the Truck filed his written statement and denied that the alleged accident happened because of the negligence of his driver. The
Insurance Company, in its written statement denied the very involvement of the Truck No.MHÂ26 HÂ7885 in occurrence of the alleged accident.
In order to substantiate the contentions raised in the claim petition, total four witnesses were examined by the appellants. Evidence of Noor Ali
Khan (PWÂ2) was adduced claiming that he had eyeÂwitnessed the alleged accident. The Investigation Officer/Police Inspector ÂÂ
Umashankar Manmath Kasture, who filed the chargeÂsheet in the case arising out of the alleged accident, was examined as PWÂ3 and for proving
the income of deceased Abdul Khadir, Senior Clerk  Hanumant Mohanrao Kausalya from the Office of the AntiÂCorruption Bureau was
examined as PWÂ4. No oral or documentary evidence was adduced by respondent No.1. Insurance Company also did not adduce any oral
evidence. The learned Tribunal after having assessed the evidence brought on record before it, dismissed the claim petition vide the impugned order
holding that the appellants have failed in proving the involvement of the Truck bearing registration No.MHÂ26 HÂ7885 in occurrence of the alleged
accident. Aggrieved by, the original claimants have preferred the present appeal. Â
Shri H.I.Pathan, learned Counsel appearing for the appellantsassailed the impugned Judgment on various grounds. The learned Counsel submitted
that though, the Tribunal has dismissed the claim petition on the sole ground that the claimants did not prove the involvement of the offending vehicle in
the accident, no issue in that regard was framed by the Tribunal and as such no opportunity was given to the appellants either to adduce necessary
evidence in that regard or make necessary submissions on the said issue. Â The learned Counsel submitted that without framing a specific issue in
that regard, no such finding could have been recorded by the Tribunal. The learned Counsel submitted that in the similar circumstances, the Division
Bench of this Court in First Appeal No.1993 of 2009 decided on 04.01.2010 had remanded the matter back to the Tribunal with a direction to frame a
specific issue in that regard and to decide the matter afresh. The learned Counsel submitted that similar circumstances are existing in the instant
case and as such, the course as was adopted by the Division Bench in the said case, will have to be adopted in the present case. The learned
Counsel further submitted that the finding recorded by the Tribunal is otherwise even on facts, is incorrect and unsustainable and this Court can set
aside the same without remanding the matter back to the Tribunal.Â
The learned Counsel submitted that the Tribunal has given unnecessary weightage to some minor admissions given by Noor Ali Khan (PWÂ2)
as well as Investigating Officer  Umashankar Kasture (PWÂ3). The learned Counsel submitted that what was required to be considered by
the Tribunal was the core fact deposed by the aforesaid two witnesses as about occurrence of the accident and involvement of the alleged Truck in
the said accident. The learned Counsel submitted that merely because Noor Ali Khan (PWÂ2) did not immediately report the incident of the
accident to the Police Station, his evidence could not have been rejected in toto by the Tribunal. The learned Counsel submitted that the Tribunal
has lost the sight of the fact that owner of the vehicle did not dispute the involvement of the vehicle owned by him in occurrence of the alleged
accident. What has been disputed by the owner of the vehicle is the allegation that the accident happened because of the negligence on the part of
the driver, who was driving the offending vehicle. The learned Counsel submitted that in the background of the Written Statement submitted by the
owner of the offending vehicle, if the evidence of Noor Ali Khan (PWÂ2) and Investigating Officer â€" Umashankar Kasture (PWÂ3) is
considered, there remains no doubt about the involvement of offending Truck in occurrence of the alleged accident. The learned Counsel submitted
that the Tribunal has analyzed the evidence of Noor Ali Khan (PWÂ2) as if it was a criminal trial. The learned Counsel submitted that it was not
necessary on the part of the appellants to prove everything beyond reasonable doubt. The learned Counsel submitted that the evidence of Noor
Ali Khan (PWÂ2) and Investigating Officer ÂÂ Umashankar Kasture (PWÂ3) was sufficient to reach to the conclusion that the appellants have
sufficiently proved the involvement of the offending Truck owned by respondent No.1 and insured with respondent No.2 in occurrence of the alleged
accident.Â
The learned Counsel submitted that the learned Tribunal has also failed in appreciating that when a specific plea was raised by the Insurance
Company as about false claim made by the appellants about the involvement of the offending Truck, the said fact ought to have been proved by the
Insurance Company by adducing positive evidence in that regard. The learned Counsel submitted that admittedly, the Insurance Company did not
adduce any evidence either oral or documentary. The learned Counsel, therefore, prayed for setting aside the impugned Judgment and allow the
claim petition filed by the appellants.
The learned Counsel submitted that the deceased was in the services of the Police Department and his salary was proved by the appellants by
bringing on record his salary certificate and his age was also proved. In such circumstances, according to the learned Counsel the compensation
can be determined on the basis of the evidence which is available on record. The learned Counsel in the circumstances, prayed for allowing the
claim petition and in the alternative, prayed that the Tribunal  be directed to frame a specific issue as about involvement of the offending
Truck bearing registration No.MHÂ26 HÂ7885 in the accident and to decide the said issue by giving due opportunity to the parties to the claim
petition and also to decide on merits all other issues already framed.Â
Shri H.I.Pathan, learned Counsel for the appellants reliedupon the Judgment of this Court in the case of Harshadrai Mohanlal Bhammar Vs. Anil
Baburao Ghodeswar & others. [(2005) (S) Bom.C.R. 923], wherein the learned Single Judge of this Court has held that the evidence of the eyeÂ‐
witness cannot be discarded merely on the basis of some discrepancy and or for want of clear evidence etc.   The reliance was also placed
by the learned Counsel on the another Judgment of this Court in the case of Smt.Manisha Wd/o Prakash Patil & Ors. Vs. Umakant Marotrao Kolhe
& anr., [2016 ALL MR (CRI) 1271]. The learned Counsel taking me through the observations made by this Court in the aforesaid Judgment
submitted that the facts involved in the present case are similar to the facts which were involved in the aforesaid case. The learned Counsel
submitted that normally, the persons are reluctant to approach and/or to go to the Police Station and in such circumstances, merely because a person,
who has eyewitnessed the alleged incident, did not report the incident of accident in the Police Station, cannot be a ground to reject his
evidence.  Â
Shri P.V.Ambade, learned Counsel appearing for respondentNo.1 submitted that the appellants failed in proving the negligence of driver of the
offending vehicle and as such the learned Tribunal has rightly rejected the claim petition.Â
Shri S.G.Chapalgaonkar, learned Counsel appearing forrespondent Insurance Company supported the impugned Judgment.
The learned Counsel submitted that the learned Tribunal has rightly appreciated the evidence of Noor Ali Khan (PWÂ2) and the Investigating
Officer â€" Umashankar Kasture (PWÂ3) and has recorded correct conclusion, which does not warrant any interference. The learned Counsel
taking me through the evidence of both the witnesses, which was already read over by the learned Counsel for the appellants, submitted that the
evidence of these witnesses read as it is transpires that Noor Ali Khan (PWÂ2) was a got up witness planted to prove the involvement of the
offending vehicle in occurrence of the accident. The learned Counsel submitted that if the conduct of the said witness is considered, it was highly
improbable and no reliance can be placed on the evidence of the said witness. The learned Counsel submitted that the offence came to be
registered and chargeÂsheet came to be filed against the driver of the offending vehicle in relation to the accident only on the basis of the statement
of said Noor Ali Khan (PWÂ2).
The learned Counsel further invited my attention towards evidence of Investigating Officer  Umashankar Kasture (PWÂ3). The learned
Counsel submitted that from the evidence of Umashankar Kasture (PWÂ3), it can be gathered that no proper investigation was conducted by the
said Police Officer in the alleged accident and merely relying upon the sole statement of Noor Ali Khan, the chargesheet came to be filed. The
learned Counsel submitted that though, the accident had happened on 20.02.2010, and though, the person dashed in the said accident was a Police
person, the FIR was not immediately lodged and it came to be lodged after two days i.e. 22.02.2010. The learned Counsel further pointed out
that deceased Abdul Khadir died on 07.03.2010 i.e. after about 17 days of occurrence of the alleged accident. The learned Counsel submitted
that during the said entire period, there was absolutely no investigation except the FIR on record against the unknown vehicle. The learned Counsel
submitted that taking all the circumstances cumulatively, the only conclusion, which emerges is that the vehicle alleged to have been involved in the
alleged accident was infact not involved. The learned Counsel submitted that after analyzing the entire evidence, the Tribunal has arrived at a
correct conclusion and no interference is required in the finding so recorded. The learned Counsel in the circumstances, prayed for dismissal of the
appeal.Â
In so far as the alternate prayer made on behalf of the appellants to remit back the matter to the Tribunal by directing to frame issue as aboutÂ
involvement of the offending vehicle in the alleged accident, the learned Counsel for the respondent Insurance Company submitted that the issues
framed were sufficient to cover the aspect as has been argued and the parties were having knowledge of all the facts and that is the reason that the
appellants examined eyeÂwitness of the alleged accident as well as the Investigating Officer and in the circumstances, according to him, no case is
made out for remitting the matter back to the Tribunal as has been prayed on behalf of the appellants. The learned Counsel relied upon the
Judgment of Hon'ble Apex Court in the case of Anil and Others Vs. New India Assurance Company Limited and Others [(2018) 2 SCC 482] to
buttress his contention.Â
I have given due consideration to the submissions made by the learned Counsel appearing for the respective parties. I have perused the
impugned Judgment as well as entire evidence, which was adduced before the Tribunal. I have also gone through the Judgments relied upon by the
learned Counsel appearing for the parties.
 15. From the submissions advanced on behalf of the appellants, it is quite evident that in order to prove that the Truck bearing registration
No.MHÂ26 HÂ7885Â was involved in the alleged accident and because of the rash and negligent driving of the said Truck by its driver the alleged
accident had taken place, the entire thrust of the appellants is on the evidence of one Noor Ali Khan (PWÂ2), who is posed as an eyeÂwitness to the
alleged accident and based on whose statement the chargeÂsheet is filed against the driver of the said Truck in relation to the accident in question.
In order to prove the chargeÂsheet, the appellants had examined the Investigating Officer namely Umashankar Kasture (PWÂ3), who filed the
said chargeÂsheet.  Before scrutinizing the evidence of Noor Ali Khan (PWÂ2), I would prefer to look into the evidence of Umashankar
Kasture (PWÂ3) the Investigating Officer. On perusal of the testimony of the said witness and reading of the chargeÂsheet, a copy of which is filed
on record, it is revealed that the chargeÂsheet for the offences punishable under Section 279, 338 and 304A of the Indian Penal Code came to be filed
in relation to the alleged accident solely on the basis of the statement of Noor Ali Khan (PWÂ2). Umashankar Kasture (PWÂ3) in his crossÂ‐
examination has candidly admitted that offences came to be registered and ultimately chargeÂsheet came to be filed in relation to the alleged accident
happened on 20.02.2010 solely on the basis of the statement of Noor Ali Khan (PWÂ2). Said Noor Ali Khan (PWÂ2) is thus a crucial
witness. The statement of Noor Ali Khan (PWÂ2) was admittedly recorded after two and half months of the occurrence of the alleged accident.
I have carefully perused the evidence of Noor Ali Khan (PWÂ2) as well as the evidence of Umashankar Kasture (PWÂ3). On perusal of
the evidence of said Noor Ali Khan (PWÂ2), it is apparently revealed that the Trial Court has not committed any error in not believing his
evidence.  As has been deposed by said Noor Ali Khan (PWÂ2) on 20.02.2010 at about 9:00 to 9:15 p.m. when he was passing from Degloor
Naka on his Motorcycle, one Truck ahead of him gave a dash to one Motorcyclist near Waghalekar Petrol Pump because of which the Motorcyclist
fell down.  Noor Ali Khan (PWÂ2) had further deposed that the Truck driver did not stop the Truck on the spot after occurrence of the alleged
accident and proceeded further. He had further deposed that he, therefore, chased the said Truck for a distance of about 1km. but failed in catching
hold of it. As has come on record in his crossÂexamination,  he had gone to Hyderabad after the said incident of accident and after he returned
from there, he came to know about the death of Abdul Khadir in the alleged accident, whereupon he went to the Police Station and disclosed about
the alleged accident and involvement of the said Truck bearing registration No.MHÂ26 HÂ7885 in the alleged accident. Noor Ali Khan (PWÂ2) also
stated that he had noted down the registration number of the offending Truck in his diary.
On reading of the evidence of Noor Ali Khan (PWÂ2), the question arises whether his conduct, as is revealed from the facts deposed by him,
can be said to be natural, probable and believable. The learned Tribunal has elaborately discussed the evidence of the said witness and has ultimately
recorded a finding that his evidence cannot be believed. The Tribunal has also observed that the said witness was a planted witness so as to falsely
show the involvement of the Truck bearing registration No.MHÂ26 HÂ7885 in occurrence of the alleged accident. I fully agree with the
observations so made and the findings recorded by the learned Tribunal. The entire story as has been attempted to be brought on record through the
evidence of the Noor Ali Khan (PWÂ2) appears to be concocted and wholly unbelievable. It appears quite unconscionable that a person who
chased a Truck as because it gave a dash to a motorcyclist and had not thereafter stopped at the spot but attempted to flee away from the spot, would
after failing in catchingÂhold of the said Truck, would not take any further action and would quietly go to his home.
It was sought to be canvassed by the learned Counsel for the appellants that common man is always reluctant to go to the Police Station for
lodging the report fearing that the Police would try to implicate him in the said crime and that was the reason that PWÂ2 did not go to the Police
Station to lodge the report of the alleged accident. The argument so made is liable to be turned down for many reasons. As has come on
record, PWÂ2 is in the business of sale and purchase of the vehicles. Looking to the nature of the business being carried out by PWÂ2, it is
difficult to believe that even if he did eyeÂwitness the alleged accident, he did not report the said accident to the Police fearing his implication in
occurrence of the alleged accident.  The very purpose of chasing the Truck by him was to nab the culprit and to ensure his arrest by the
Police.    In the circumstances, his further conduct of returning to his home after failing in catching the fleeing Truck without taking any
further action is difficult to be accepted.
It has also come on record in the crossÂexamination of PWÂ2 that after he failed in catching and detaining the fleeing Truck, he returned at the
spot where the accident had occurred and saw some persons lingering on the spot.  It appears unnatural and unbelievable that PWÂ2 did not
disclose to the said persons that he tried hard to catchÂhold of the fleeing Truck, which had given dash to the Motorcyclist and though he failed in
that he has taken down the number of the said Truck.
The further conduct of Noor Ali Khan (PWÂ2) appears equally improbable that he did not make any further enquiry and did not even attempt
to know the name of the victim for whom infact he did chase the offending Truck for about 1km.
I fully endorse the observations made and the finding recorded by the learned Tribunal that if according to the version of PWÂ2, ten minutes were
consumed for crossing the distance of one kilometer even though he was on Motorcycle, it has to be inferred that the offending Truck also must be
moving very slowly. As further noted by the Tribunal, had PWÂ2 walked on the road, he could have easily caught hold of the Truck driver. The
circumstances as above lead to the only inference that the story attempted to be made out by PWÂ2 was concocted and PWÂ2 was planted as a
witness by the Police in connivance with the claimants though he had not in fact eye witnessed the alleged accident.  Â
As further observed by the learned Tribunal there is nothing on record to show as to when and how Noor Ali Khan (PWÂ2) first came to
know the name of the victim of the alleged accident and the further fact that he ultimately died in the said accident. As stated by the said witness
in his crossÂexamination, he was not having any acquaintance with the victim of the alleged accident. Similarly, there is evidence to show as to
how Sk.Jalil, who is stated to have taken Noor Ali Khan (PWÂ2) at the Police Station, came to know that Noor Ali Khan (PWÂ2) was the eyeÂ‐
witness of the alleged accident. The question further arises if Sk.Jalil was knowing that Noor Ali Khan (PWÂ2) was eyeÂwitness of the alleged
accident, why he himself did not give that information to the Police with the further information that said Noor Ali Khan (PWÂ2) has gone out of
station and the moment he comes back he will bring him to the Police Station. There is further no evidence to show whether Noor Ali Khan
(PWÂ2) really had gone to Hyderabad and if yes, on which date he went to Hyderabad and when he returned therefrom. It is more surprising that
Investigating Officer also did not make any enquiry as about the aforesaid aspect.Â
The fact disclosed by Noor Ali Khan (PWÂ2) in his crossexamination that he had noted down the number of the offending Truck in his diary
cannot be believed. Had there been any truth in the fact so deposed by Noor Ali Khan (PWÂ2), he must have produced the said diary before the
Police and in any case before the Tribunal. From the evidence of Umashankar Kasture (PWÂ3), it appears that Noor Ali Khan (PWÂ2) has
not disclosed the said fact while giving his statement to the Police or else Umashankar Kasture (PWÂ3) in his evidence before the Court must have
reiterated the said fact. As has come on record in the crossÂexamination of Noor Ali Khan (PWÂ2) there were two Police Chowkies on the
way he chased the offending Truck. In the circumstances, his natural conduct would would have been to give information about the alleged
accident to the Police Officer present at the said Police Chowkies. NonÂgiving of such information raises serious doubt about the truthfulness of
the fact deposed by Noor Ali Khan (PWÂ2) that he chased the offending Truck.
After having considered the facts and circumstances as above, unhesitatingly it can be said that Noor Ali Khan (PWÂ2) had not eyewitnessed
the alleged accident and his evidence cannot be believed.
Serious doubts are also raised about the so called investigation carried out by Umashankar Kasture (PWÂ3) in the matter of the alleged
accident. The FIR of the alleged accident was admittedly filed on 22.02.2010 against the unknown vehicle. As deposed by Umashankar Kasture
({PWÂ3), on the same day he had visited the spot of the accident. It is surprising that he did not record the statement of any of the person in the
surrounding area where the alleged accident had happened. As has come on record the alleged accident had occurred  opposite to the
Waghalekar Petrol Pump. The Investigating Officer, however, did not record the statement of any of the employee of the said Petrol Pump. The
persons residing or carrying on their business around the spot of the accident could certainly have provided the information atleast about kind of
vehicle that gave dash to the Motorcyclist, whether it was a Car, Jeep, Tractor or a Truck ?. That much information could have been certainly
gathered by the Investigating Officer (PWÂ3) from the said persons when he visited the spot of accident. Admittedly, no such effort was made.Â
The Investigating Officer (PWÂ3) has also not explained as to the progress about the investigation in the matter of the alleged accident in the
period between 22.02.2010 i.e. the date of lodging of the FIR till 18.05.2010 the date on which the statement of Noor Ali Khan (PWÂ2)Â was
recorded by him. The Investigating Officer also did not collect any information or verify the fact deposed by Noor Ali Khan (PWÂ2)    that
he had been to Hyderabad after occurrence of the alleged accident and returned there from after two months and twentyÂtwo days. The
Investigating Officer also did  not collect any information from Noor Ali Khan (PWÂ2) as to when and how he came to know the name of the
victim of the alleged accident. The Investigating Officer also did not record the statement of Sk.Jalil who had brought Noor Ali Khan (PWÂ2) to the
Police Station for recording his statement. After having considered the facts as aforesaid, I fully agree with the conclusion arrived at by the
Tribunal that infact the Investigating Officer without conducting any investigation filed the chargeÂsheet only on the basis of the statement of
PWÂ2, probably with the only intention to assist the claimants.
Further, when admittedly the accident had happened on a road having heavy traffic and as deposed by Noor Ali Khan (PWÂ2) there was
heavy traffic even at the time of accident, it was impossible for the driver of the offending vehicle to flee away from the spot with the offending
vehicle. When the alleged accident had happened in the city area and that too on a road having heavy traffic on it and the spot of accident was
surrounded by shops and houses, naturally the same would have been instantly cordoned and it was difficult nay impossible for the offending Truckk to
flee away from the said spot. The entire story, therefore, appears to be false and concocted. The appellants have utterly failed in proving that the
Truck bearing registration No.MHÂ26 HÂ7885 was involved in the alleged accident. The finding recorded by the learned Tribunal in this regard is
based on the evidence which has come on record and I see no reason to cause any interference in the finding recorded by the Tribunal that the
claimants have failed to prove the involvement of the offending Truck in the occurrence of the alleged accident.Â
The contention of Shri H.I.Pathan, learned Counsel for the appellants that since no specific issue as about the involvement of the offending Truck
was framed by the Tribunal, the appellants did not get the opportunity to adduce the necessary evidence therefor, must also be rejected. The very
first issue as was framed by the Tribunal was “Do the petitioners prove that due to rash and negligent driving of truck no.MH-26/H-7885, Abdul
Khadir met with an accident and died ?â€. Thus, the petitioners were cast with the burden to prove the rash and negligent driving of the driver of
the Truck bearing registration No.MHÂ26 H7885. The said burden could not have been discharged by the appellants/claimants unless they first
prove the involvement of the said Truck in occurrence of the alleged accident. There was no need for framing of any specific issue as about the
involvement of the offending Truck in occurrence of the alleged accident and it was well covered in the issue as was framed by the Tribunal. The
Judgment relied upon by the learned Counsel in this regard may not apply to the facts of the present case.
After having considered the entire material on record, it does not appear to me that any case is made out by the appellants for causing any
interference in the well reasoned Judgment delivered by the learned Tribunal. The appeal being meritÂless, deserves to be dismissed and is
accordingly dismissed with costs.