As regards the fact of accident is concerned, the initial burden is always on the claimant/ claimants to prove the same, which includes not only the involvement of the vehicle but also the manner in which the accident had taken place, as pleaded in the petition. All those authorities, which have been relied by the learned Advocate appearing for the appellant, have reiterated the basic principle as aforesaid i.e. the burden is on the claimants to prove the accident including the involvement of the vehicle/vehicles. In First Appeal No. 2742 of 2015 (supra) note has been taken of the decision of Division Bench of this Court in First Appeal No. 32 of 2013 decided on 11.07.2013 (Goa Bench), wherein it was held that mere production of police papers and exhibiting those documents does not dispense the proof of contents of those documents. It was also held that merely on the basis of certified copies of First Information Report, Spot Panchnama and other documents the claimants cannot prove their case. Therefore, it is now required to be seen, as to whether the evidence adduced in this case fulfills the criteria.
12. The First Information Report has been admittedly lodged belatedly. At this stage itself, note can be taken regarding the ratio in Ravi v/s. Badrinarayan and others reporting in MANU/SC/0133/2011 : (2011) 4 SCC 693 that delay in lodging the FIR, cannot be taken as a main ground for rejecting the claim petition. Here not only the point of delay has been canvassed but it is coupled with non-involvement and collusion. Therefore, facts and evidence is required to be scanned taking into consideration these aspects. Informant Balaji is the brother of deceased and in the First Information Report, which has been lodged after 25 days of accident (on 21.06.2011), number of Tata Magic has been given and then it is stated that when he came to know about the accident, he went to hospital, where Dhanaji was admitted. He had come to know that two persons from his village viz. Laxman Uttam Kamble and Mahesh Rangnath Deshmukh had admitted Dhanaji to hospital regarding details of accident. It appears that Dhanaji was unconscious on that day but on the next day i.e. on 28.05.2011 he expired at about 1.00 p.m.. It also appears from the contents of the First Information Report that the police were calling Balaji, since the date of post mortem and inquest panchnama, to lodge First Information Report but Balaji had not gone to Police Station. He has tried to explain that, since he was in grief and his mental condition was not proper, inspite of messages given he could not lodge the report. The claimants have not examined Balaji for the reasons best known to them. No doubt, he was not eye witness but then he could have thrown light as to why he had lodged the First Information Report belatedly and no other person could have lodged the report at any earlier point of time. Interesting point to be noted is that the inquest panchnama was executed on 28.05.2011 when Balaji was present. The inquest panchnama Exh.32 only makes a statement that motorcycle driven by Dhanaji was dashed by Tata Magic. Why First Information Report was not taken down at that point itself is a question. It will not be out of place to mention another interesting fact that claimants have examined CW 2 Dipak Lokhande, whose name is not appearing in inquest panchnama or in the spot panchnama or even in First Information Report, but then he say that he had seen the accident. So also, he says that the accident was witnessed by Laxman Kamble and Mahesh Deshmukh from his village. Now said Mahesh Deshmukh is, in fact, panch to the inquest panchnama. Therefore, if he was an eye witness to the incident, why he did not inform the said fact and ask the police to incorporate the vehicle number of Tata Magic in the inquest panchnama itself, is also a question. Conveniently the claimants have kept him out of witness box, for the reasons best known to them. Therefore, mere mention of Tata Magic in inquest panchnama will not be sufficient to hold that it was the Tata Magic belonging to respondent No. 1 and insured with respondent No. 2 on the date of the accident.
IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)
First Appeal No. 606 of 2019 and Civil Application No. 3025 of 2019 in FA/606/2019
Decided On: 24.09.2019
Shriram Insurance Company Ltd. Vs. Vanita and Ors.
Hon'ble Judges/Coram:
Vibha Kankanwadi, J.
Citation: MANU/MH/2654/2019.
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