1 2575.2009 FA +1(J) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 2575 OF 2009 [ENTITY] through its Divisional Manager, Adalat Road, Aurangabad. Appellants Versus 1] [ENTITY] W/o Narayan Patil, Age 48 years, Occu. Household, r/o Wawade, Tq. Amalner, Dist. Jalgaon. 2] [ENTITY] s/o Narayan Patil, Age 25 yea, Occu. Student, R/o as above. 3] [ENTITY], Age Major, Occu. Transport Business, R/o Dalvada Banda Falia, Nani Daman, District Daman, Daman and Div-396210 Owner of Eicher No. DD-03-B9828. Respondents WITH FIRST APPEAL NO. 2548 OF 2009 [ENTITY] through its Divisional Manager, Adalat Road, Aurangabad. Appellants Versus 1] [ENTITY] W/o Nana Patil, Age 48 years, Occu. Household, r/o Wawade, Tq. Amalner, Dist. Jalgaon. Downloaded on - 27/11/2013 20:22:12 2 2575.2009 FA +1(J) 2] [ENTITY], Age Major, Occu. Transport Business, R/o Dalvada Banda Falia, Nani Daman, District Daman, Daman and Div-396210 Owner of Eicher No. DD-03-B9828. Respondents Shri [ENTITY], Advocate for appellant Shri [ENTITY], Advocate for respondent Nos. 1 & 2 (in F.A. No. 2575/09) and for respondent No. 1 (in F.A. No. 2548/09) None present for respondent No. 3 (in F.A. No. 2575/09 ) & None present for respondent No. 2 (in F.A. No. 2548/09) CORAM : Mrs. [ENTITY], J. DATE : 27th SEPTEMBER, 2013. ORAL JUDGMENT :
. Heard learned counsel for respective parties.
2. Admit.
3. Learned Counsel Shri [ENTITY] waives notices for Respondent Nos. 1 & 2 in [CASE NUMBER] and also waives notice Respondent No. 1 in [CASE NUMBER]. By Consent of learned Counsel for the parties, first appeals are heard finally at the stage of admission.
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4. Two first appeals are filed by the appellant/ Insurance Company challenging the judgments and awards dated 16-06-2010 by the Member, Motor Accident Claims Tribunal, Amalner, Dist.
Jalgaon in [CASE NUMBER], whereby allowing the compensation for the death.
FACTS OF THE CASE
5. The main defence taken by the learned Counsel for the appellant/ Insurance Company is that the vehicle involved in the accident is goods vehicle an Isher truck, and both the deceased were travelling as passengers in the said truck. They were neither owners of the goods nor the persons authrorised who can be covered under the policy. Therefore, the appellant/ Insurance Company is not liable to pay any compensation.
6. The learned Counsel for the appellant-Insurance Company relied on [SECTION] and [SECTION] of the [ACT] (hereinafter for short referred to as "Act") and submitted that, [SECTION] of the Act states the categories of persons who are entitled to claim the compensation and the defence are available to the Insurance Company under [SECTION] of the Act. The learned Counsel for the appellant-Insurance Company further submitted that 4 2575.2009 FA +1(J) the original claimants i.e. respondents could not prove that the deceased were the persons who were fit for the compensation under [SECTION] of the Act. The learned Counsel further submitted that by way of amendment in 1994 in [SECTION] of the Act, death or injuries caused to a person who is authorised representative of the goods carried in the goods vehicle can be covered under the amendment and he is entitled to get compensation. The evidence tendered by the claimants to that effect is false and not reliable. In support of his submission he relied on :-
"1] Nation Insurance Co. Ltd. V. Rattani & Ors; reported in AIR 2009, Supreme Court, [SECTION]9 2] [PRECEDENT]. ; reported in 2007, DGLS(Soft.) 573.
3] [PRECEDENT].
4] [PRECEDENT] ."
The learned Counsel for the appellant submitted that the Tribunal did not frame the issues properly, and there was no specific issue regarding defence of the Insurance Company.
7. The learned Counsel for the respondents/ Original claimants 5 2575.2009 FA +1(J) have vehemently opposed the appeal. The learned Counsel invited my attention towards the evidence adduced by the original claimants i.e. (Respondent No. 1 in [CASE NUMBER]) widows of the respective deceased. They have deposed before the Tribunal that their husband were an agriculturist and having business of milk and at the relevant time they boarded in the Isher truck from Songaon Check post (Gujarath State) and were coming with the plastic bags to their place of residence. The learned Counsel further submitted that the in the spot Panchanama (Exhibit 18) and FIR (Exhibit 17) there is a mention that a plastic bags were found at the spot of the accident, and thus the original claimant/ respondent No. 1 ( in [CASE NUMBER]) discharged her burden, on the point that the deceased were travelling with the goods in the vehicle and, therefore, they are entitled to get compensation as per [SECTION]
(b) of the [ACT]. The learned Counsel further submitted that the Insurance Company did not examine any witness in support of its case that the deceased were travelling as a passengers and not carrying goods with them. The learned Counsel submitted that the burden to prove this fact was entirely on the appellant-Insurance Company. On this point he relied on the judgment of the Single Judge of this Court in the case of [PRECEDENT];
and submitted that if at all original claimants produce evidence indicating that the deceased was travelling with the goods, then it is the responsibility of the Insurance Company to prove that the deceased was not travelling along with the goods and onus shifts on the Insurance Company and if Insurance Company fails to do so, then it cannot be absolved from liability to pay compensation. The learned Counsel for the respondents further relied on a judgment in the case of [PRECEDENT]; and submitted that the learned Single Judge of the Goa Bench of this Court has considered this aspect of burden in respect of proving a fact of a gratuitous passenger travelling in a goods in a vehicle, and after considering all Rulings and cases, the Single Judge of Goa Bench of this Court has held that the Insurance Company is entirely a responsible to prove said fact and the Insurance Company has to discharge the burden that the person travelling was not with the goods and a gratuitous passenger. Therefore, the burden lies on the Insurance Company to establish breach of contract of an Insurance Policy and the Insurance Company in the present has not discharged the said burden by examining the witnesses. The learned Counsel further submitted that 7 2575.2009 FA +1(J) the original claimants have tendered a possible evidence which was available to them, and there is no reason to discard their evidence, as the Insurance Company has not examined any witness, therefore, the findings given by the Tribunal in favour of the original claimants are to be upheld.
8. The Original claimants No. 1 (in [CASE NUMBER] & [CASE NUMBER]) stepped in the witness box, and they deposed about death of their respective husband in the accident, when they were travelling in the Isher truck from Songaon check post to their village. Admittedly, both are not the eye witnesses to the accident.
However, their evidence on the point of death of their respective husband is to be accepted. The main issue in these first appeals is as under :-
" Whether the deceased were travelling along with the goods in the said vehicle or not?"
9. It is averred in the application that the deceased were travelling with the plastic bags. The witness also deposed accordingly. The spot panchanama (Exhibit 18) was drawn on 07-05-2006, it shows that in the spot panchanama (Exh. 18) plastic bags were found. The learned Member has framed issue No. 2 on the point " Whether applicant is 8 2575.2009 FA +1(J) entitled for compensation along with the interest or not?". While discussing the said issue in para No. 21 of the judgment, the learned Member, has mentioned that the deceased were travelling along with their plastic bags and Tribunal has accepted the evidence of the original claimants, that they were travelling with the goods. The Tribunal has not properly appreciated the documents on this point.
10. The learned Counsel for the Insurance Company has drawn my attention towards the FIR which was given by the driver of the Isher truck. The said FIR. throws light on the factual position. An FIR was given by given by the police constable wherein it is mentioned that driver namely [ENTITY], loaded goods i.e. empty plastic bags of cement in the Isher truck. However, the goods are described as empty Nylon bags in the spot Panchanama (Exh. 18). The Nylon bags were lying on the spot along with the damaged truck. The names of Mr. [ENTITY] and Mr. [ENTITY] are mentioned in an FIR ( Exhibit 17) as they were carrying the goods.
11. The learned Counsel for the respondents contended that there are two types of bags i.e. plastic bags and Nylon bags as stated in [PRECEDENT] the spot panchanama (Exh. 17). There is no mention of empty bags of cement, but the description of the plastic bags and the witnesses have also stated specifically in their evidence that their respective husbands were carrying plastic bags. Therefore, the learned Counsel argued that it is to be inferred that the deceased were travelling with the plastic bags which are different than the empty bags of cement.
The submissions made by the learned Counsel for the respondents are difficult to accept. Now a days cement is not filled in gunny bags, but it is stored in the polythene plastic woven sacks. Thus, those empty bags of cement were loaded in the truck. A nomenclature of such bags may vary and it can be described as polythene bags, plastic bags or nylon bags and, therefore, it cannot be accepted in the absence of an independent evidence that the traveller/ deceased were carrying their own goods i.e. plastic bags. The spot panchanama (Exh. 18) does not describe two types of bags were laying, it only discloses that bundles of plastic bags were found. The spot panchanama (Exh. 18) might have been helpful the original claimants and advantage of such ambiguity could have been given to the claimants but for specific mention of particular type goods and also the names of the authorised carriers of those goods in the FIR (Exh. 17), that benefit cannot be given to the claimants.
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12. A legal point was raised by the learned Counsel for the respondent that an FIR cannot be used for corroboration and it cannot be considered as part of the evidence read in the proceedings, in the absence of evidence to that effect tendered by the Insurance Company.
13. The learned Single Judge of Goa Bench of this Court in the case of [PRECEDENT] (supra) while deciding the liability of the Insurance Company in respect of gratuitous passengers travelling in the goods vehicle has considered the evidentiary value of the FIR in the proceedings. In the said case, original claimant was a labourer and travelling with the goods in the Pick up hired by a marriage party. The said Pick up turn turtled and husband of the original claimant died. In the said case, Insurance Company adopted a defence that deceased was travelling in the Pick up, a goods vehicle, as a gratuitous passenger in the Pick up and, therefore, Insurance Company is not liable to pay any compensation and the owner of the vehicle is liable to indemnify the compensation. In the said case, the Goa Bench of this Court has allowed the claim by holding that deceased was travelling along with 11 2575.2009 FA +1(J) the marriage party, who was caretaker of gifts/ articles (goods), and gifts/ articles were loaded as goods. It was held that burden lies on the Insurance Company to prove breach of contract of the Insurance Policy. The learned Single Judge of the Goa Bench has relied on the case of [PRECEDENT], (supra). It was held in the said case that the statements in an FIR are not corroborative evidence to prove that that the deceased was a gratuitous passenger, as the insurer and the owner has to prove that the deceased was not unauthorised representative of the goods. The claim was allowed on the point that the respondent No.3-Insurance Company did not examine owner of the goods which were carried in the said Pick up.
14. In the case of [PRECEDENT] (supra) relied by the original claimants that deceased was traveling in the goods vehicle. However, there is a evidence that he had purchase material for erecting shed. After making purchase the deceased engaged a tempo and traveling in the vehicle goods. However, in the spot panchanma did not mention about the goods being transported in the tempo, it could not be believed that the deceased was traveling as an owner of the goods.
Therefore the Tribunal cast burden on the claimant. The Insurance 12 2575.2009 FA +1(J) Company did not lead any evidence to substantiate its contention and it was observed by the learned Single Judge that it was necessary for the Insurance Company to prove its contention that the deceased was travelling as a gratuitous passenger in the tempo. There was material on record to indicate that the deceased had purchased wood and other material for constructing a shed, and transporting these goods to his village. It was observed by the learned Single Judge of this Court that statute must be liberally construed as statutory compensation may being to a large number of families of accident victims ' the only ray of light at the end of the tunnel'.
15. This point needs deliberation. Generally, in the accident place, if a case is registered then the documents are produced in criminal cases by the original claimants or the Insurance Company in the claim petition. These documents are mainly an FIR, a spot panchanama, and a statement of driver of the vehicle in question or witnesses, if any. The documents are exhibited, if they are not challenged. Generally, an FIR and a spot panchanama are taken on record without challenge and they are exhibited. These documents support the original claimant to prove, how the accident has occurred, who was negligent, which vehicles were involved etc. The evidence 13 2575.2009 FA +1(J) under the Act cannot be scrutinised by applying yardstick of strict proof of facts. A Judge has to bear in mind that it is an unique and beneficial enactment by our Legislation. Undoubtedly, this Legislation provides financial aid to certain victims and the families to bear the trauma of the accident. Therefore, Courts rely on the evidence of the original claimants when the evidence is found reasonably satisfactory.
The burden is put on the Insurance Company and the owner to prove their defence. Under [SECTION] of the Act various defences are available to the Insurance Company and, if defence of breach of conditions of the licence is adopted by the Insurance Company, undoubtedly then the burden lies strictly on the Insurance Company.
When the claimants depose how the accident was occurred and about the injuries sustained to the deceased, and how much financial loss is incurred to them, then the overall burden is discharged by the victims/original claimants, thereafter, onus shifts on the Insurance Company to prove its defence,. This is a settled position of law.
16. An FIR (Exh. 17) and the spot Panchanama (Exh. 18) if admitted and exhibited in the proceedings, then those documents can be read as a whole. The Tribunal cannot choose to read some part of the document and turn blind towards some portion of the document.
14 2575.2009 FA +1(J) The contents in the document which is exhibited and accepted by both the parties, are to be taken into account. The contents of the FIR are to be read as a whole, if some portion is favourable to a party and remaining part is not, then the party has to consider Whether these documents are to be admitted or not ? Even if, such documents are exhibited, then the concerned party can lead evidence and explain the contents which are damaging the case of the party.
Such explanatory evidence can be led by the party to establish the said portion is false and not to be believed. Thereafter, it is up to the Tribunal to appreciate the said evidence to believe or discard. In Criminal trial an FIR used for the purpose of corroboration of evidence. In cases tried before the Motor Accident Claims Tribunal many times though complainant is not examined, the FIR is taken on record and exhibited. The contents in the FIR can be read. When the claimant stands in the box and tells that accident has taken in particular manner and an offence is registered against the driver, in that case FIR is relied to corroborate the fact of accident and lodging the case against the driver. Therefore, FIR is also used as an evidence for the purpose of corroboration to prove the fact of accident and other accident related facts.
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17. On the point of proof of an FIR the Hon'ble Supreme Court in the case of [PRECEDENT] (supra), in Para No. 13 has observed thus :-
" However, the factum of an accident could also be proved from the First Information Report. It is also to be noted that once a part of the contents of the documents is admitted in evidence, the party bringing the same on record cannot be permitted to turn round and contend that the other contents contained in the rest part thereof had not been proved. Both the parties have relied thereupon. It was marked as an Exhibit as both the parties intended to rely upon them."
18. In the year 1994, [SECTION] of the Act was amended, and a person travelling as an authorised representative or caretaker of the goods in the vehicle is covered in the categories of the of entitlement.
Therefore, an authorised representative or caretaker of the goods is a fit person to claim compensation. The Legislation has taken realistic approach. Therefore, that class of persons is covered under the insurance policy. An FIR may be given by the owner or a driver involved in the vehicle, if driver is dead in the accident, in that case FIR is given by another person or by Police Constable himself. In the case when driver lodges an FIR then he is bound to absolve himself from the liability of the occurrence of the accident. No driver would state that the accident was taken because of his negligence.
He would state that accident has taken place because of some other 16 2575.2009 FA +1(J) unavoidable circumstances or due to the negligence of the other vehicle. Obviously, acceptance of such statements in the FIR will cause injustice to the claimants. No case would be left open to the claimants to argue negligence of the driver and if those statements in the FIR are accepted as truth, then Insurance Company need not prove its case of contributory negligence. This creates totally unjust, unfair situation contradicting object of the legislature. In fact, a driver is the best witness in all accident cases, he is the one who has exact knowledge of the fact that how the accident has occurred, and to whom he was carrying as a passengers. However, he being a respondent as an interested party, hardly steps in the witness box to support the case of the claimant. Where the respondent is the owner jointly and severally responsible to pay the compensation in that case driver would depose in favour of the employer, and not in favour of the Insurance Company. Driver is an employee of the owner and he is interested in saving his job and, therefore, he would not say about breach of policy which may saddle the entire liability on the owner i.e. his employer.
19. All statements in the FIR thus cannot be rejected or believed, but considering the other evidence depending on the facts and 17 2575.2009 FA +1(J) circumstances of each case to be tested to find of the truth. A driver is the best person to know and state about whether a passenger was travelling gratuitous in goods vehicle or Whether he was given a lift by the driver of the goods vehicle on his way, and what type of goods he was carrying from one place to another place. Therefore, the statement made in the FIR by the driver immediately after the accident, if found false then cannot be believed, and if found true on the basis of the other evidence, then that can be accepted by the Tribunal. Even though, it is helpful to the Insurance Company. A statement in the FIR if inspires confidence in the mind of the Tribunal, then there should not be any hesitation for the Tribunal to accept such statement for giving reasons.
20. An evidence to be appreciated by keeping the object of the Act in the mind with a view to provide claimants to get benefit of the compensation. However, it does not mean that let the scale of justice tilt in favour of the claimants. A justice is required to be balanced and a truth should prevail. The real claimants who genuinely fall under [SECTION] of the Act should get compensation, but similarly a false claim cannot be allowed by overlooking true facts.
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21. I take support of para No. 3 of the Judgment of the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. V. Rattani & Ors (supra). :-
" The question as to whether burden of poof has been discharged by a party to the lis or not would depend upon the facts and circumstances of the case. If the facts are admitted or, if otherwise, sufficient materials have been brought on record so as to enable a court to arrive at a definite conclusion, it is idle to contend that the party on whom the burden of poof lay would still be liable to produce direct evidence to establish that the deceased and the injured passengers were gratuitous passengers."
22. In case in hand as stated above, though the claimants in both the Motor Accident Claims in question, deposed that their respective husbands were traveling with the plastic bags in the vehicle and the plastic bags were found in the spot panchanama (Exh. 18).
However, how the driver was driving the vehicle is mentioned in the FIR. He was driving the vehicle from Daman to Amalner, he loaded Isher Truck with empty cement bags and two other persons namely Mr. [ENTITY] and Mr. [ENTITY] were travelling as caretaker of the goods or authorised representative of the goods. Thus, the FIR nullifies the case of the claimants that their husbands were traveling with plastic bags. Assuming the plastic bags were carried by deceased; however, whether those 1[PRECEDENT] bags to be treated as goods loaded in the Isher truck by the driver or it was a luggage of the deceased claimants? The goods/ articles which are carried by the passenger as 'luggage' in the vehicle cannot be considered as goods under [SECTION] of the Act. Thus, the deceased can not be the owners or authorised representatives of the goods which were loaded in the Isher truck, but it fall in the category of 'luggage', which cannot be covered under [SECTION] of the Act. In the present case, it is difficult to accept the situation of coincidence, as in the Isher truck empty plastic bags of cement were loaded as goods and the similar plastic bags were also carried by the deceased. Such coincidence is too remote to believe it to be true.
On this point reliance is placed on the Judgment of the Hon'ble Supreme Court in the case of [PRECEDENT] and also on the judgment of High Court Andhara pradesh in the case of [PRECEDENT] (supra).The Hon'ble Supreme Court in the case of [PRECEDENT] (supra) has observed in para No. 18 which reads as under. :-
" In this case, the High Court had proceeded on the basis that they were gratuitous passengers. The admitted plea of the respondents themselves was that the
20 2575.2009 FA +1(J) deceased had boarded the lorry and paid an amount of Rs. 20/- as transport charges. It has not been proved that the deceased was traveling in the lorry along with the driver or the cleaner as the owner of the goods. Traveling with the goods itself does not entitle anyone to protection under [SECTION] of the [ACT]. "
23. Considering the rival submissions, the first appeals are allowed. The judgment and order dated 16-06-2009 passed by the learned Member, Motor Accident Claims Tribunal, Amalner, Dist.
Jalgaon in [CASE NUMBER] are quashed and set aside. Thus, the Insurance Company is absolved from it's liability to pay the compensation. It is clear that the judgment and award passed by the Tribunal is maintained to the extent of liability of the owner of the vehicle. The respondent claimants are free to recover entire amount of the compensation awarded by the Tribunal from the owner of the vehicle.
24. First appeals are disposed of accordingly.
[ Mrs. [ENTITY], J.] SDM*/ Sept.2013