1 FA 2055.2010 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 2055 OF 2010 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mr.S.P.Chapalgaonkar,Advocate for the appellant Mr. R.V.Gore, Advocate for the resp. no. 1. Mr. R.R.Gore, Advocate for the resp. no. 2. .......................... CORAM : S.V. GANGAPURWALA, J. DATE : 25/04/2011 PER COURT : 1. A notice for final disposal was issued. 2. The present Appeal is by the Insurance Company. The claimants had filed petition U/s 163-A of the Motor Vehicles Act [ For short, ‘ M.V. Act ’ ] claiming compensation on account of the death of Gajanan, who died in the motor vehicular accident. The Tribunal awarded total compensation of Rs. 3,88,500/- to the claimants holding the original respondent nos. 1 and 2 2 FA 2055.2010 jointly and severally liable to pay the amount. The Insurance Company aggrieved thereby, has filed the present Appeal. 3. Mr. S.P.Chapalgaonkar, the learned counsel for the appellant submits that it was the case of breach of policy. The appellant would not be liable as the deceased was travelling on the top of the cabin of the truck. In such circumstances, the Insurance Company would be exonerated of its alleged liability. The F.I.R. and the charge sheet proves this fact. The F.I.R. has been relied for proving the accident. For the said purpose, the learned counsel relies on the Judgment of the Apex Court in the case of National Insurance Co. Ltd. V/s Cholleti Bharatamma and others reported in 2007 AIR SCW 7337 and another Judgment of the Apex Court in the case of Oriental Insurance Co. Ltd. V/s Premlata Shukla and others reported in 2007 AIR SCW 3591. 4. Per contra Mr. Gore, the learned counsel for the original claimants submits that the Courts have relied on the evidence on record. The oral evidence has been led. The respondents did not lead any evidence to disprove the contention of the claimants. More over, the Tribunal has also considered the totality of the evidence on record 3 FA 2055.2010 and had held that Gajanan was sitting in the cabin and not on the top of the cabin. 5. With the assistance of the learned counsel, I have gone through the Judgment and the record and proceedings. 6. The evidence led before the Court would be a part of the substantive evidence. No doubt, the contents of the F.I.R. would be the corroborative piece of evidence to prove the said fact. Here the Insurance Company has cross examined the claimant and has given the positive suggestion to the claimant which is answered by the claimant as under, “ It is true to say that my son was travelling by truck sitting in the cabin ”. When the positive case has been put-forth by the respondent by way of cross examination and suggestion, the same has to be considered. Even in the F.I.R., which is in vernacular language, it is stated that he was sitting in the truck in the cabin and in the charge sheet it is stated that due to sudden stoppage of the vehicle, the person sitting over the truck’s cabin fell down. So, even the F.I.R. specifically shows that the deceased was sitting in the cabin in the truck. Taking into account this evidence, the Tribunal has not committed any error in coming to the conclusion that the deceased Gajanan was 4 FA 2055.2010 sitting in the cabin. 7. Once having held that Gajanan was sitting in the cabin, then no question would arise of the breach of the policy committed and that was the only ground on which the Judgment was assailed. 8. In the result, the present Appeal is dismissed, however with no order as to costs. 9. In view of dismissal of First Appeal, the Civil Applications do not survive and are dismissed. [ S.V. GANGAPURWALA,J. ] KNP/FA 2055.2010