1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 195 of 1997 United India Insurance Company Ltd. Having its Branch at 15, Cannaught Road, Hotel Amir Building, Pune 411 011. ... Appellant versus 1. Hansabai Hiraman Jagtap Adult, Occ.Household 2. Kisan Sakharam Jagtap Adul, Occ. Agriculturist 3. Smt.Janabai Kisan Jagtap Adult, Occ. Household Nos.1 to 3 residing at and Post Khamgaon BK, Taluka Daund, District Pune ... Respondents ... Mr.R.S. Darandale i/b Rajesh Datar for the appellant. CORAM : D.G. KARNIK, J. DATED : 16th August 2010 2 ORAL JUDGMENT:- 1. This appeal by the Insurance Company is directed against the judgment and order dated 4 September 1996 passed by the Motor Accident Claims Tribunal, Pune (for short “the Tribunal”) allowing the claim application by the respondents 1, 2 and 3 and awarding compensation of Rs.65,000/- together with interest. 2. Respondent no.1 is the widow and respondent nos.2 and 3 are the parents of the deceased Hiraman who died in an accident. According to the appellant, Hiraman was walking as a pedestrian on public road at Damdere Vasti, Urali Kanchan. At that time, a motorcycle bearing registration no. MXV 779 (for short “the motorcycle”) belonging to Laxman Choudhary (respondent no.8) came from behind and gave a dash to Hiraman. After the accident, the motorcyclist and the pillion rider ran away from the spot. Hiraman died on account of the injuries suffered by the accident. Hence, a claim for compensation was made by respondent nos.1 to 3. The appellant being an Insurance Company was joined as party respondent no.6 in the claim application. 3. After considering the evidence adduced before it, the Tribunal held that respondent no.4 herein (opponent no.1 before the Tribunal) was driving the motorcycle rashly and negligently and the accident was caused solely on account of the negligence of 3 the original opponent no.1. Accordingly, the Tribunal awarded a compensation of Rs.65,000/- to the respondent nos.1 to 3. 4. Learned counsel for the appellant did not address me on the issue of negligence of the driver of the motorcycle nor did he advance any argument regarding the quantum of compensation. The only point urged before me by the appellant is that the motorcycle was being driven by original opponent no.2 who was a minor and did not have a driving license. He submitted that since the motorcycle was being driven by a minor who did not possess a valid driving license, the Insurance company was not liable to pay any compensation. None appeared before me on behalf of the respondents. 5. Considering the submission of the learned counsel for the appellant, the only point that arises for my consideration is whether the finding of the Tribunal that the motorcycle was being driven by the original opponent no.1, is proper? 6. Learned counsel for the appellant invited my attention to the averments made in the original claim application and submitted that the claimants themselves were not sure whether the original opponent no.1 or original opponent no.2 was driving the motorcycle. At one place, they had averred that opponent no.2 who was a minor was driving the motorcycle but in order to shield the opponent no.2 who was a minor from criminal liability, it was 4 wrongly claimed that opponent no.1 was driving the motorcycle. In this regard, a reference may be made to the written statement of opponent no.1. In paragraph no.12 of the written statement, he has clearly denied that original opponent no.2 was driving the motorcycle. He has further denied that there was any attempt to show that appellant no.1 was driving the motorcycle to save the opponent no.2 from the criminal liability. Thus, it was the case of the opponent no.1 that he himself was driving the motorcycle. Respondent nos.1 to 3 who are the heirs of the deceased were admittedly not present at the spot at the time of the accident. They had no personal knowledge about the accident and as to who was driving the motorcycle. The opponent no.1 who had the personal knowledge has admitted that he was driving the motorcycle. In the light of these facts, the Tribunal did not attach much importance to the pleadings of the respondent nos.1 to 3 that the original opponent no.2 and not the opponent no.1 was driving the motorcycle. I am in agreement with the Tribunal in this regard. 7. Before the Tribunal, Mr.Vijay Chirme was examined as an eye witness. He has stated on oath that he had seen the accident and he had also stated that a person aged about 30-40 years was driving the motorcycle at the relevant time and he ran away after the accident. The original opponent no.2 was a minor boy of 12 years at the time of the accident. On this evidence, the Tribunal has come to the conclusion that opponent no.2 minor boy was not 5 driving the motorcycle at the time of the accident. The finding of the Tribunal is based on appreciation of evidence. On re- appreciation of the evidence, I am of the view that the finding is appropriate for the reasons indicated below. 8. As stated earlier, respondent nos.1 to 3 had no personal knowledge about the accident and hence their statement in the said pleadings that the original opponent no.2 minor was driving the motorcycle and changes were made in the FIR only to save him from the criminal liability cannot be held against them. In the written statement, opponent no.1 had specifically denied that opponent no.2 was driving the motorcycle. Mr.Vijay Chirme, an eye witness stated on oath that the driver of the motorcycle was aged 30-40 years which was the age of the opponent no.1 at the relevant time. There was no possibility of eye witness mistaking the opponent no.2, a minor boy of 12 years, to be of aged 30-40 years. It is no doubt true that in the FIR, initially the police had recorded that opponent no.2 was driver of the motorcycle. The FIR was admittedly not filed by any of the eye witnesses but by Mr.D.A.Gaikwad, Assistant Sub-Inspector who did not have personal knowledge, at the time of filing an FIR, as to the name of the person driving the motorcycle. Subsequently, after recording the statements of the witnesses, he made corrections to show that motorcycle was being driven by opponent no.1. On the basis of this evidence, it cannot be held that it was original opponent no.2, minor was driving the motorcycle at the relevant time. The 6 motorcycle was being driven by opponent no.1 who possessed a valid license to drive. 9. For these reasons, I hold that the motorcycle was being driven by opponent no.1 at the relevant time. As opponent no.1 was holding a valid driving license, the Insurance Company cannot escape the liability. There is no merit in the appeal which is hereby dismissed. (D.G. KARNIK,J.)