FA-699-2016 -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.699 OF 2016 WITH CIVIL APPLICATION NO. 10703 OF 2016 Bajaj Allianz General Insurance Co. Ltd. GE Plaza, Airport Road, Yerwada, Pune – 411 006 Through its Branch Manager / Authorized Signatory, 2nd Floor, Rajendra Bhavan, Adalat Road, Next to LIC Building, Aurangabad. … Appellant (Orig. Respondent No.3) Versus 1. Premlabai @ Premlata W/o Chandrabhan Shirsath, Age : 44 Years, Occupation : Service, 2. Abhilasha D/o Chandrabhan Shirsath, Age : 22 years, Occupation : Education, 3. Bharat S/o. Chandrabhan Shirsath, Age : 18 years, Occupation : Education 4. Daga Labha Shirsath, Age : 72 years, Occupation : Education, 5. Chandrakala Daga Shirsath, Age : 69 years, Occupation : Nil, 6. Shaikh Jahir Shaikh Bashir, } Age : 62 years, Occu. : Driver, } Deleted as per order R/o. Moglai, Dhule, } dated 06.09.2024 Taluka & District Dhule. } 7. Sikandar Dadu Pinjari, Age : Major, Occu. : Business, R/o. SitaramMali Chal, Chittod Road, Dhule … Respondents (Resp. Nos.1 to 5 – Orig. Claimants Resp. Nos.6 & 7 – Orig. Resp. Nos.1 and 2) 2026:BHC-AUG:6229 FA-699-2016 -2- ….. Mr. Mohit R. Deshmukh, Advocate for Appellant. Mr. Shrikant S. Patil, Advocate for Respondent Nos.1 to 5. ….. CORAM : ABHAY S. WAGHWASE, J. RESERVED ON : 09 FEBRUARY 2026 PRONOUNCED ON : 12 FEBRUARY 2026 JUDGMENT : 1. In this insurance appeal, there is challenge to the judgment and order dated 07.12.2015 passed by learned Motor Accident Claims Tribunal, Dhule in M.A.C.P. No. 421 of 2011 awarding compensation by partly allowing the claim petition instituted by present respondents/original claimants. 2. M.A.C.P. No. 421 of 2011 was instituted by heirs of Chandrabhan by invoking section 166 of Motor Vehicles Act, 1988, on the ground that, deceased Chandrabhan, while traveling on motorcycle No.MH-18-Q-7742 on the Shirpur-Sulwade Road on 21.12.2010, was suffered dash at the hands of truck owned by original respondent no.2 and he succumbed to the fatal injuries. Attributing negligence to the truck driver, compensation was sought from its driver, owner and its insurer i.e. present appellant. On appreciation of oral and documentary evidence, learned tribunal partly allowed the claim petition and awarded compensation to the tune of Rs.49,06,412/- with interest at the rate of 8% per annum. FA-699-2016 -3- There is challenge to the above judgment and award, fundamentally on the ground of non involvement of truck insured by them. 3. Learned counsel for insurance company - appellant would submit that, here, there was delayed FIR. According to him, moreover even when accident was of 21.12.2010, on belated statements of some alleged passers by, truck is impleaded to be involved. That, he pointed out that, here, the Patrolling Officer, who lodged FIR, has apparently reported dash given by unknown driver of unknown vehicle. He pointed out that, one Manoj Wagh and Pramod Pawar, after few days of the accident, gave statements about witnessing the accident. However, he pointed out that, their evidence is not credible and full-proof. According to him, they claimed to be acquaintances of deceased, and therefore, there is possibility of these witnesses to be got-up witnesses. He pointed to their statements and would submit that, it seems to be their case that they saw motorcycle lying on the road, and therefore, they had no witnessed the actual collision or dash. According to him, same is the version of witness namely Pramod Pawar. He pointed out that, they both claimed that they have given chase to the truck, but did not note its number and subsequently in their belated statements, they have named truck insured by the appellant to be offending truck. He pointed out that, FA-699-2016 -4- there is, in fact, no eye witness to the same. According to him, merely because on belated statements, charge sheet has been filed, involvement of truck cannot be believed. 4. Questioning the veracity and credibility of the statements of Manoj Wagh and Pramod Pawar, he pointed out that, according to them, they claimed to have heard noise of application of break, but even their such version stands belied by virtue of absence of break mark in the spot panchanama. He also questions the unnatural conduct on the part of these witnesses for not lodging the report regarding the accident. For above reasons, he questions the maintainability and sustainability of the judgment and award passed by learned tribunal directing insurance company to pay jointly with other respondents. In support of his contentions, learned counsel seeks reliance on the following rulings : (i) Sithara N.S. & Ors. Etc. v. Sai Ram General Insurance Company Limited in Criminal Appeal Nos.14718-14719 of 2025 (Supreme Court). (ii) HDFC ERGO General Insurance Company Limited v. Ramesh Bajirao Chemte and Anr. in First Appeal No.309 of 2021 (Bombay High Court, Aurangabad Bench). (iii) Vanita & Ors. v. M/s. Shriram Insurance Company Limited and Anr. in Civil Appeal No.6794 of 2025 (Supreme Court). FA-699-2016 -5- 5. In answer to above, learned counsel for respondents - original claimants, while justifying the order of learned tribunal, took this court through the charge-sheet comprising of statements of Manoj Wagh and Pramod Pawar, he also took this court through the cross faced by these witnesses and would submit that, their evidence has remained virtually intact. He emphasized that, in cases of such nature, rules of strict evidence are relaxed and cases are to be appreciated on preponderance of probabilities; and, here, according to him, the claimants had probabilized their defence to a greater extent. He would submit that, insurance company having failed to independently adduce any evidence or rebut the evidence, cannot question the findings of learned tribunal for disproving the case of claimants. He pointed out that, in the very written statement of the owner of the offending truck, mere stand of negligence is taken and there is no denial of involvement of the truck. He took this court through the statements of above witnesses at Exhs.75 and 76 and would submit that there is no reason to doubt the veracity or credibility of these two witnesses. He pointed out that, merely because their statements are recorded after a day or two, he could not be open to doubting their story and brand them as got-up witnesses. Further according to him, when these witnesses have given plausible explanation for the delay i.e. on having learnt about FA-699-2016 -6- an accident being registered against an unknown person, they had duly and promptly given statements to police, and as such, there is no infirmity. He lastly submitted that, in accident cases, requirement of standard proof is relaxed. For all above reasons, he justifies the order of tribunal and prays to dismiss the appeal for want of merits. 6. The primary and fundamental objection raised by insurance company in appeal is regarding non involvement of truck bearing No.MH-18-M-4652 owned by original respondent no.2 and insured by present appellant, who is arraigned as original respondent no.3 before the learned tribunal. Specific case of appellant is that, there is no iota of evidence regarding involvement of said truck and on a belated statement of some witnesses, who are got-up witnesses, involvement of truck is shown. 7. Admittedly, wife of deceased i.e. claimant no.1 is not an eye witness. There is further dispute that, “khabar” at Exh.24 is by police constable Piran Gulam Shaikh, who was said to be on patrolling duty, but as pointed out, this khabar is of 21.12.2010 at 21:30 hours and it just regarding coming across motorcycle MH-18-Q-7742 lying on the road and a person also lying in injured condition and being shifted on account of head injury. Till this point of time, there is no reference about involvement of any truck. FIR seems to be recorded FA-699-2016 -7- on 23.12.2010 and charge sheet seems to have been filed on 25.05.2011, followed by other steps of investigation. 8. As pointed out, claimants have adduced evidence of two witnesses, namely Manoj Wagh and Pramod Pawar. Statement of Manoj Wagh finds place in the charge sheet and it is recorded on 25.12.2010, wherein he stated that on 21.12.2010, while he and his friend Pramod were proceeding on their motorcycle from Shirpur towards a Sindhkhed, around 9:15 p.m., one truck allegedly overtook them in dangerously close distance. He claims that in the headlight of the motorcycle he noted the truck number as MH-18-M-4652 and further reported that after covering some distance, they heard loud noise of application of break and when they reached said spot, they noticed motorcycle rider lying on the road. Hearing their shouts, it is alleged that the truck driver, along with vehicle, fled in the direction of Sindhkheda. He further stated that, he realized that, the injured was Chandrabhan, a Professor of S.S.V.P.S. college, Sindhkheda, at that time, another motorcycle reached there and requesting them to shift the injured to the hospital. This witness claims that he and his friend chased the truck, but it managed to flee, and for want of fuel, they could not chase the truck. He further stated that, on 05.01.2011, when he and his friend were present at his xerox shop, from the peon of the college, they learnt that the police is yet to seize FA-699-2016 -8- the truck and that they are searching the vehicle and on learning to that extent he claims that they gave statement. 9. Above witness is cross examined by insurance company and the cross is as under :- “Cross by Shri D.N. Pingale, Advocate for Resp. No.3. 4. As my xerox shop is near college and since Shirsath used to come to my shop, I know him. I did not notice the number of the motorcycle, which had stopped on hearing my shouts. Both persons were unknown. Police chauky is in Sindkheda village. We reached Sindkheda around 9:30 to 9:45 pm. I did not inform the police about the accident. On the next day, I came to know about the death of Mr. Shirsath and then I informed the police. Then I and Pramod informed the police. Police recorded my statement after two days. I am B.A. I had not noted down the number of the truck, but I remembered it. The number of motorcycle of my friend is MH-18-T-2447. It is not true to say that the said truck had not given dash to the deceased. I do not know whether respondent no.1 was driving the truck as I had not seen the truck driver. It is not true to say I am deposing false as deceased was known to me.” 10. Learned counsel for appellant - insurance company would brand this witness as got-up witness on two counts, i.e. firstly not FA-699-2016 -9- lodging FIR promptly and secondly giving belated statement and ultimately his version to be unworthy of evidence. 11. Learned counsel for original claimants has also invited attention of this court to the written statement of truck owner, which is at Exh.20/B and as pointed, it emerges from the same that, there is no denial of involvement of truck, rather reply is focused on deceased motorcycle himself to be rash and negligent and plea is set up that truck was moderate speed. Only on such count, liability is sought to be denied. 12. Thus, here, on one hand, the owner of the truck does not deny involvement, but only attributes negligence to the deceased and his insurer takes up a plea of non involvement. Even in the written statement of the insurance company in the trial court, amongst other grounds, involvement is challenged on the merits by raising simplicitor denial of truck to be rash and negligent. Even in paragraph 17 of the written statement of insurance company, plea of truck being driven in moderate speed by observing traffic rules is apparently raised apart from raising plea of contributory negligence. Therefore, taking such stand of insurance company before the tribunal into account, it is doubtful whether it is open for insurance company to question the involvement of the insured vehicle. Here, FA-699-2016 -10- there is charge upon investigation. On the seizure of truck in question, its panchanama is drawn, showing the bonnet suffering dents suggesting impact with another vehicle. Therefore, it cannot be said that there was no evidence at all for fixing liability on truck. Merely because khabar was about dash given by unknown driver of unknown vehicle, on conclusion of investigation comprising statements of witnesses like Manoj Wagh and Pramod Pawar, claimants have indeed probabilized involvement of truck. Mere typographical mistake in the date itself would not be sufficient to discard other above discussed evidence. 13. I have gone through the rulings and citations tried to be taken aid of, but facts in those cases are materially distinct than the facts in the case in hand. Therefore, in the considered opinion of this court, it is not open for appellant to seek reliance on the same. In the case of Sithara N.S. Ors. (Supra), the vehicle was recovered one and half months after the accident and no evidence exists to establish the involvement of the alleged offending vehicle and also the report of the Motor Vehicle Inspector did not support the appellant’s case. In the case of Vanita & Ors. v. M/s. Shriram Insurance Co. Ltd. (Supra) , it is observed by the Hon’ble Apex Court that mere mentioning name of vehicle as Tata Magic in the inquest panchanama or in the FIR, would not be sufficient to hold that it was the same Tata Magic belonging to FA-699-2016 -11- respondent no.1 and insured with respondent No.2, in absence of its clear identification. In the inquest panchanama, registration number of offending vehicle was not mention. In the case of HDFC ERGO General Insurance Company Limited (Supra), the involvement of the offending vehicle is not proved. Eye- witnesses did not provide the vehicle number in their statements before the police nor did they lodge any complaint with police. The accident occurred near the petrol pump. However, none is examined from the petrol pump. Even the station diary entry was made at the instance of CW-2, where he had given information that unknown two wheeler vehicle had given a dash. Hence, none of the rulings come to the aid of the appellant. 14. Resultantly, there is no merit in the appeal and hence I proceed to pass the following order :- ORDER (i) The First Appeal is dismissed. (ii) In view of the dismissal of the First Appeal preferred by the insurance company, the Civil Application filed by original claimants for withdrawal of amount is allowed in terms of prayer clauses (b) and (c). (ABHAY S. WAGHWASE, J.) Tandale