IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.1629 of 2000 Date of decision:06.08.2010 M/s The New India Assurance Company Limited ....Appellant versus Krishan Kumar Chawla and others ...Respondents II. FAO No.1630 of 2000 M/s The New India Assurance Company Limited ....Appellant versus Prerna Deewan and others ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Raj Kumar Bashamboo, Advocate, for the appellant. None for the respondents. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? ---- K.Kannan, J. (Oral) 1. Both the cases are connected, arising out of the same accident and are disposed of by common order. 2. The Insurance Company is in appeal challenging the awards as regards the liability cast on it on the ground that at the relevant time, FAO No.1629 of 2000 - 2 - the offending vehicle in which the deceased were travelling, was used as a taxi, while the policy of insurance was as a private vehicle. The fact that the passengers were fare paying passengers was brought out through the FIR itself where one of the passengers had admitted to have paid the fare at the time of travelling along with the other persons. 3. The Insurance Company had taken a definite stand in the written statement that the vehicle had been insured only as a private vehicle but it was used as a taxi in contravention of the terms of the policy. The claimants gave evidence without reference to the manner of the user of the vehicle and only on the side of the respondent, the insurer produced the FIR to show that the vehicle had been used as a taxi. The Tribunal rejected the contents of the FIR as irrelevant for according to it the contents of the FIR had not been proved. In a summary proceedings under the MV Act before the Tribunal, a FIR and its contents are definitely relevant to ascertain the nature of accident, the purpose of user, the stand of the parties etc. A recital in a FIR by a person travelling in the vehicle constitutes an admission against the claimant and the insurer is entitled to rely on its own recital without more. It is unnecessary to call the Investigating Officer to prove the same. The learned counsel for the respondent relies on a judgment of this Court in Jagan Nath Versus Ganesh and others-1981 ACJ 483, that held that a previous statement made by witness to the police cannot be used against the person making it unless it is put to him and when it is denied, the Investigating Officer himself is examined to prove the statement and elicit the contradiction. A statement to a witness which the above decision alludes to is not the FAO No.1629 of 2000 - 3 - same thing as a written version of a complaint through a FIR. A “161 statement” cannot be evidence proprio vigore. On the other hand, a statement in FIR is evidence per se. It could have been explained but the author of the FIR did not chose to contradict his own version when he was tendering evidence in Court. I am, therefore, clearly of the view that the Tribunal was in error in rejecting the contents of the FIR. It ought to have accepted the contention of the insurer that the vehicle had been used by the insured for a purpose which was not covered under the terms of the policy. There had been a breach of the terms of the policy and, therefore, the insurer's liability shall subsist no more than to satisfy the claim of the claimants and to recover the same against the insured. 4. The award of the Tribunal is, under the circumstances, modified and the insurer is found entitled to pay and recover the award amount from the insured/owner. The appeal is allowed on the above terms. (K.KANNAN) JUDGE 06.08.2010 sanjeev