1 FA 526.21 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR FIRST APPEAL NO.526 OF 2021 Mahendra s/o Shivdas Shejav, Aged about 28 years, Occupation-Mason, R/o. Khinkhini, Tq. Murtizapur, District-Akola. .. Appellant ..Versus.. 1) Swapnil s/o Vinodrao Bhagat, Aged about 29 years, Occupation-Driver, R/o. Gorewada Quarters Colony, Nagpur, Tq. & Dist. Nagpur. 2) Nalanda s/o Kisan Manohar, Aged about – Adult, Occupation-Owner, R/o. Sneha Deep Nagar, Jaripatka, Nagpur, Tq. & Dist. Nagpur. 3) Reliance General Insurance Company Limited, Through Branch Manager, Branch Office, Akola, Tq. & Dist. Akola. .. Respondents ……………. Shri P.R. Agrawal, Advocate for Appellant. Shri D.N. Kukday, Advocate for Respondent No.3. None for Respondent Nos.1 and 2 though served by paper publication. …………… 2026:BHC-NAG:12225 2 FA 526.21 CORAM : PRAVIN S. PATIL, J. DATED : 10.09.2026. JUDGMENT 1. In the present appeal, the challenge is to the judgment and award passed by the learned Motor Accident Claims Tribunal, Akola in Motor Accident Claim Petition No.43/2012, dated 28.04.2017, whereby the learned Tribunal has dismissed the claim petition filed by the appellants. 2. The brief facts of the case are as under : The appellant states that on 28.12.2011 while he was travelling on his motorcycle as a pillion rider and his friend namely, Shrikrishna Narayan Wankhede was driving the said motorcycle from Kamargaon to Amravati, near Takli ‘T’ Junction, the Innova car bearing registration no.MH-40-A-2151 came from Amravati side towards Kamargaon in a high speed and could not control his vehicle. As a result, the driver of the Innova car gave violent dash to the motorcycle of the appellant and thereby he was thrown away on the road. According to the appellant, two of his friends, due to violent dash, died on the 3 FA 526.21 spot and the appellant sustained serious injuries. 3. The appellant states that in view of this incident, the offence came to be registered against the driver of Innova vehicle and he was held responsible for the accident. The driver of Innova vehicle did not lodge any counter complaint alleging that the appellant and his two friends were at fault while driving the motorcycle. As such, there is no offence registered against the present appellant. 4. The appellant, therefore, filed the claim petition before the Tribunal thereby claiming the compensation before the Tribunal. In the said claim petition, in response to the notices issued to the driver and owner of the Innova vehicle, they have filed their written statement on 04.05.2012. The respondent nos.1 and 2-driver and owner in their written statement nowhere stated that the accident occurred due to the negligence of the person riding on a motorcycle. The only statement they have made that the offending vehicle is duly insured with the respondent no.3 and having a valid policy from 12.02.2011 to 11.02.2012. As such, the vehicle being insured, all the liability of the damage, if any, caused on the vehicle, same is payable by 4 FA 526.21 the respondent no.3-insurance company. 5. It is pointed out by the appellant that in the light of pleadings of the parties, the issue was framed and evidence was recorded by the Tribunal. Only the appellant step into the witness box before the Tribunal by filing his affidavit dated 15.04.2014. He has reiterated the entire averment which was stated in his claim petition and was cross-examined by the respondent-insurance company. The appellant has further examined Dr. Supriya Deshpande to ascertain the disability and the medical expenses caused to the appellant in the accident. The said witness was also cross-examined by the respondents. 6. The respondent-driver and owner as well as insurance company did not enter into the witness box nor they have established that the rider of the motorcycle are in any way responsible for the alleged accident. They have only chose to cross-examine the witnesses of the appellant and made oral submission before the Tribunal. 7. The learned Tribunal, in the light of above factual position, by the impugned judgment dated 28.04.2017, 5 FA 526.21 dismissed the complaint mainly on the ground that there is a variation in the statement of the appellant about the person who was driving the motorcycle. According to him, the FIR reveals that appellant was driving the motorcycle, however, in the examination-in-chief he deposes that Shrikrishna Wankhede was driving the motorcycle and in the cross-examination, he admits that Ankush Athwale was driving the motorcycle. As such, it is not made clear who was driving the motorcycle. It is further recorded by the learned Tribunal that none amongst the three persons, who are driving the motorcycle, was having a valid driving licence and, therefore, considering this variation in the statement of the claimant and as he was not having the licence to drive the motorcycle, the appellant is not entitled for any compensation. 8. The learned Tribunal has relied upon Section 128 of the Motor Vehicles Act, which provides that no driver of a two wheeler motorcycle shall carry more than one person in addition to himself on the motorcycle and in the present case, as three persons were driving the motorcycle, same was a breach of the provisions of Section 128 of the Motor Vehicles 6 FA 526.21 Act. Hence, considering this factual position, the learned Tribunal by the impugned judgment dismissed the claim petition. 9. The appellant, who approached before this court, states that in the present matter, it is admitted fact that the offence is registered against the driver of the offending vehicle i.e. Innova Car. The said investigation has been completed and the proceedings against the driver of the vehicle were proceeded further before the competent court of law. The driver of the vehicle never came with a case that the accident has been occurred due to the fault on the part of the appellant. So also they have not taken any such stand before the Tribunal. Therefore, in absence of such stand, nor any evidence available on record, merely because the appellant could not specify, who was driving the motorcycle, cannot be a reason to reject the claim petition. 10. In support of above submission, the appellant has relied upon the judgment of the Hon’ble Supreme Court of India in the case of Mohammed Siddique and another .vs. National Insurance Company Limited, reported in 2020 (3) SCC 57. 7 FA 526.21 In this judgment, Hon’ble Supreme Court has held that there must be a casual connection between the violation and the accident or a casual connection between the violation and the impact of the accident upon the victim. A mere fact that a person was a pillion rider on a motorcycle along with the driver and one more person on the pillion, may be a violation of the law. But such violation unless established, have no impact to reject the Claim Application. It is further held that in absence of any evidence to show that wrongful act on the part of the victim contributed either to the accident or to the nature of injuries sustained, he cannot be held guilty for the negligence. It will be relevant to refer para nos.12, 13 and 14 of the judgment which reads as under : 12. It is seen from the material on record that the accident occurred at about 2:00 a.m. on 5.09.2008. Therefore, there was no possibility of heavy traffic on the road. The finding of fact by the Tribunal, as confirmed by the High Court, was that the motor cycle in which the deceased was travelling, was hit by the car from behind and that therefore it was clear that the accident was caused by the rash and negligent driving of the car. In fact, the High Court confirms in paragraph 4 of the impugned order that the motor cycle was hit by the car from behind. But it nevertheless holds that 3 persons on a motor cycle could have added to the imbalance. The relevant portion of paragraph 4 of the order of the High Court reads as follows: 8 FA 526.21 "On careful assessment of the evidence led, this Court finds substance in the plea of the insurance company. While it is correct that the offending car had no business to strike from behind against the motor-cycle moving ahead of it, even if the motor cycle was changing lane to allow another vehicle to overtake, the fact that a motor vehicle meant for only two persons to ride was carrying, besides the driver, two persons on the pillion would undoubtedly have added to the imbalance." 13. But the above reason, in our view, is flawed. The fact that the deceased was riding on a motor cycle along with the driver and another, may not, by itself, without anything more, make him guilty of contributory negligence. At the most it would make him guilty of being a party to the violation of the law. Section 128 of the Motor Vehicles Act, 1988, imposes a restriction on the driver of a two wheeled motor cycle, not to carry more than one person on the motor cycle. Section 194C inserted by the Amendment Act 32 of 2019, prescribes a penalty for violation of safety measures for motor cycle drivers and pillion riders. Therefore, the fact that a person was a pillion rider on a motor cycle along with the driver and one more person on the pillion, may be a violation of the law. But such violation by itself. without anything more, cannot lead to a finding of contributory negligence, unless it is established that his very act of riding along with two others, contributed either to the accident or to the impact of the accident upon the victim. There must either be a causal connection between the violation and the accident or a causal connection between the violation and the impact of the accident upon the victim. It may so happen at times, that the accident could have been averted or the injuries sustained could have been of a lesser degree, if there had been no violation of the law by 9 FA 526.21 the victim. What could otherwise have resulted in a simple injury, might have resulted in a grievous injury or even death due to the violation of the law by the victim. It is in such cases, where, but for the violation of the law, either the accident could have been averted or the impact could have been minimized, that the principle of contributory negligence could be invoked. It is not the case of the insurer that the accident itself occurred as a result of three persons riding on a motor cycle. It is not even the case of the insurer that the accident would have been averted, if three persons were not riding on the motor cycle. The fact that the motor cycle was hit by the car from behind, is admitted. Interestingly, the finding recorded by the Tribunal that the deceased was wearing a helmet and that the deceased was knocked down after the car hit the motor cycle from behind, are all not assailed. Therefore, the finding of the High Court that 2 persons on the pillion of the motor cycle, could have added to the imbalance, is nothing but presumptuous and is not based either upon pleading or upon the evidence on record. Nothing was extracted from PW-3 to the effect that 2 persons on the pillion added to the imbalance. 14. Therefore, in the absence of any evidence to show that the wrongful act on the part of the deceased victim contributed either to the accident or to the nature of the injuries sustained, the victim could not have been held guilty of contributory negligence. Hence the reduction of 10% towards contributory negligence, is clearly unjustified and the same has to be set aside.” 11. In the present case, from the facts stated above, it is crystal clear that it is no one’s case that because of the wrongful act on the part of the appellant, the accident took place and the 10 FA 526.21 appellant suffer the injuries. Rather it is seen from the police documents that the driver of the Innova Car was responsible for the accident and due to his negligence and rash driving, offence is registered against him. In such contingency only because the appellant could not state the correct factual position as to who was driving his motorcycle cannot be a reason to dismiss the claim petition. 12. It is well settled position of law that the Accidents Claims Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. So also it is well settled position of law that even the FIR or police papers which are made part of claim petition can be looked into for giving a finding in respect of happening of the accident and for reaching conclusion about the negligence. 13. In view of above, it is clear that the learned Tribunal has committed an error by dismissing the claim petition only on the ground that the appellant could not establish who was driving the motorcycle, particularly when the offence is registered against the offending vehicle i.e. Innova Car and 11 FA 526.21 same was not disputed by the respondent-driver by filing any reply in that regard before the Tribunal. Therefore, the interference of this court is necessary in the matter. 14. In the light of aforesaid reasons, the impugned judgment is liable to be quashed and set aside by remanding back the mater to the Motor Accident Claims Tribunal, Akola to decide afresh on its own merit. Accordingly the following order is passed : O R D E R (i) The impugned judgment and award dated 28.04.2017 passed by the Motor Accident Claims Tribunal, Akola to the extent of Motor Accident Claim Petition No.43/2012 is hereby quashed and set aside. (ii) The proceedings of M.A.C.P. No.43/2012 are restored to the file of Motor Accident Claim Tribunal, Akola. (iii) The parties are directed to appear before the Motor Accident Claims Tribunal, Akola on 05.10.2026. (iv) The learned Tribunal is directed to decide afresh the Claim Petition by considering the submission of the parties available on record and all the issues are kept open to be raised 12 FA 526.21 by both the parties before the Tribunal. (v) Tribunal is directed to make endevaour to decide the Claim Petition as expeditiously as possible and preferably within a period of six months after the appearance of parties before him. (vi) Accordingly, the petition stands disposed of in above terms. No costs. (Pravin S. Patil, J.) Gulande Signed by: A.S. GULANDE Designation: Senior Pvt. Secretary Date: 16/09/2026 10:04:40