F.A.O.NO. 1795 OF 1997 and 1 Cross objection NO. 48-CII of 2001 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O.NO. 1795 OF 1997 and Cross objection NO. 48-CII of 2001 Date of decision: 19th July, 2010 New India Assurance Co. Ltd. .......Appellant Versus Sukhwinder Singh and another ........Respondents BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Inderjeet Sharma, Advocate for the appellant. Mr. R.L.Sharma, Advocate, for the respondents. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes/No 2. To be referred to the Reporters or not?Yes/No 3. Whether the judgment should be reported in the Digest? Yes/No K.Kannan, J.(Oral) 1. The Insurance Company is in appeal denying the accident and contending that the statement recorded by the Police under Section 161 Cr.P.C, revealed the fact that the accident took place when the claimant who was driving a scooter fell into a pit while overtaking the tractor. The case however, was filed as though there was a case of collision between the tractor and the scooter. 2. The Tribunal found that statement had been filed by the owner that the accident arose out of a collision with his tractor by the negligent driving of the driver of the tractor. The F.A.O.NO. 1795 OF 1997 and 2 Cross objection NO. 48-CII of 2001 Tribunal relied on the admission by the owner cum driver of the tractor and finding no counter evidence to what was pleaded by the claimant found the insured vehicle as liable for the compensation. 3. The learned counsel appearing for the Insurance Company has also moved an application under Section 170 of the Motor Vehicles Act(hereinafter referred to as the 'Act') for permitting him to contest the case on the ground of negligence and non involvement of the vehicle. I do not think an application under Section 170 of the Act could be filed before the appellate court for the first time. Still I would allow the insurer to take up a plea that the vehicle itself had not been involved in the accident. For this the jurisdictional of issue which the law requires is “the use of motor vehicle” to be proved before invoking the jurisdiction of the Accident Claims Tribunal. 4. In this case, the Tribunal had no other evidence than what was placed by the appellant. No case of collusion of the claimant with the owner was suggested at the trial by the insurer. The statement by the owner about the involvement of the tractor therefore, constituted an admission against the insurer and the Tribunal was therefore, justified in finding that the insurer and the insured to be liable for the compensation. Mere statement alleged to have been given to the police and recorded under Section 161 of Cr.P.C. cannot constitute any evidence in the eye of law unless it is used for corroboration or contradiction elicited by the examination of the investigation officer who recorded the F.A.O.NO. 1795 OF 1997 and 3 Cross objection NO. 48-CII of 2001 statement. The statement under Section 161 of Cr.P.C itself cannot be evidence proprio vigore. If the statement is discarded as it is bound to be, the finding of the Tribunal cannot be faulted. 5. There is a cross objection by the claimant for enhancement of compensation. The claimant is reported to have had a fracture of the knee, and disability certificate from the doctor had been produced to show that there was a fracture of patella and the range of movements had been restricted. The disability was assessed at 35%. Learned counsel appearing for the appellant vehemently argues that on account of the difficulty of flexion of knee he could not make any arrangement for his own marriage and the promotional prospects in his job have also been lost. I cannot take the evidence that fracture of the knee must have led to any prospect of loss of marriage. Such a physiological disability must have been specifically elicited through Doctor and I do not have the benefit of evidence of the doctor to be read in court to sustain what the learned counsel advocates for. The loss of promotion prospect by injury in the knee also sounds incongruous. The determination of compensation made at Rs.80,000/- under the circumstances seems just compensation and it would require, no further modification. 6. The appeal and the cross objections are therefore, dismissed. [K.KANNAN] JUDGE 19th July, 2010 Shivani Kaushik