1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.4308 OF 2008 WITH FIRST APPEAL NO.4307 OF 2008 WITH FIRST APPEAL NO.4309 OF 2008 WITH FIRST APPEAL NO.4310 OF 2008 _______________________________________________________________ Office Notes, Office } Memoranda of Coram, } Court's or Judge's orders appearances, Court's } orders or directions } and Registrar's orders } ___________________________}___________________________________ Mr.V. N. Upadhye, Advocate for appellant. Mr. V. S. Bedre, Advocate for respondent nos.1 to 8. [ CORAM : K.U.CHANDIWAL, J. ] DATE : 22nd January, 2010 PER COURT : 1. These appeals arising out the same accident are taken together and heard finally. Record verified by the Counsel. 2. Four casualties gave rise to the different References in terms of Section 166 of the Motor Vehicles Act before the learned 2 Member, Motor Accident Claims Tribunal, Sagamner. 3. In the case of death of Muktiyar, age 12 years, claimants sought Rs.1,00,000/-, the learned Member granted it Rs. 2,25,000/-. 4. In the case of Madhav, who is husband of Heerabai sought Rs.1,00,000/-, the learned Member granted Rs. 3,24,000/-. 5. In the case of death of Kamal, aged 30 years, her legal representatives Macchindra claimed Rs.1,00,000/-, the learned Member granted Rs.2,04,000/-. 6. In the case of first appeal no. 4310/2008, the deceased is Nivruti, aged 32 years, his age is treated as 40 years, he is rickshaw driver, the legal representatives 3 claimed Rs.1,00,000/-, the learned Member granted Rs.3,72,000/-. 7. These awards are assailed by the appellant-insurance company. 8. Mr.Upadhye submits, (a) there was apparently breach of terms of the insurance policy as motorcycle was not covered authorising the driver to carry explosives. (b) The claim is excessive, multiplier is erroneously applied and 1/3rd amount is not deducted in each of the case. (c) non- evidence by the appellant-insurance company by itself will not obligate to meet the claim as claimants have to independently stand on their footing which in fact situation the claimants failed. 9. Mr.Bedre representing the claimants indicated, for no fault of pedestrian having in sound sleep on the footpath, owing to 4 the accident, lost their precious life, while life of the claimant is put to wandering. He asserted, the accident could not be by virtue of motorcyclist who was carrying explosives on the petrol tank of the motorcycle, but it could be result of explosion to Stationary Jeep to which motorcycle dashed. In the result the death was caused due to gross negligence and rashness on the part of driver of the motorcycle. Secondly, it was bursting of petrol tank, added its impact on the events, and therefore, it being the accident due to motorcycle, will attract the terms of insurance policy, invoking liability of Insurance Company. 10. It is the matter of record, the Stationary Jeep, its owner or the said insurance company is not party in the respective claim petition. 5 11. The F.I.R. and spot panchanama convey, motorcyclist indeed carried the explosive as he has been prosecuted for infringement of provisions of Explosive Act coupled with Section 304A, 337, 338, 285, 286 and 427 of the Indian Penal Code. Due to explosives, a explosion erupted, and devastated gulping different shops putting shop owners in extreme financial stress. 12. In order to press his point to read F.I.R., Mr.Upadhye has taken recourse in the Judgment of Oriental Insurance Co. Ltd., V/s Premlata Shukla and others, Hon'ble Lordships of Apex Court in paragraph Nos.13, 14 and 15 have observed as under :- "13. 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 document is admitted in evidence, the party bringing the same on record cannot 6 be permitted to turnround 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 it. 14. Once a part of it is relied upon by both the parties, the learned Tribunal cannot be said to have committed any illegality in relying upon the other part, irrespective of the contents of the document been proved or not. If the contents have been proved, the question of reliance thereupon only upon a part thereof and not upon the rest, on the technical ground that the same had not been proved in accordance with law, would not arise. 15. A party objecting to the admissibility of a document must raise its objection at the appropriate time. If the objection is not raised and the document is allowed to be marked and that too at the instance of a party which had proved the same and wherefor consent of the other party has been obtained, the former in our opinion cannot be permitted to turnround and raise a contention that the contents of the documents had not been proved and, thus, should not be relied upon. In Hukam Singh, 7 1969 PLR 908, the law was correctly laid down by Punjab and Haryana High Court stating: "(8) Mr. G.C. Mittal, learned counsel for the respondent contended that Ram Pratap had produced only his former deposition and gave no evidence in court which could be considered by the Additional District Judge. I am afraid there is no merit in this contention. The trial court had discussed the evidence of Ram Pratap in the light of the report, Exh.D1, produced by him. The Additional District Judge while hearing the appeal could have commented on that evidence and held it to be inadmissible if law so permitted. But he did not at all have this evidence before his mind. It was not a case of inadmissible evidence either. No doubt the procedure adopted by the trial court in letting in a certified copy of the previous deposition of Ram Pratap made in the criminal proceedings and allowing the same to be proved by Ram Pratap himself was no correct and he should have been examined again in regard to all that he had stated earlier in the statement, the parties in order to save time did not object to the previous deposition being proved by Ram Pratap himself who was only cross- 8 examined. It is not a case where irrelevant evidence had been let in with the consent of the parties but the only objection is that the procedure followed in the matter of giving evidence in court was not correct. When the parties themselves have allowed certain statements to be placed on the record as a part of their evidence, it is not open to them to urge later either in the same court or in a court of appeal that the evidence produced was inadmissible. To allow them to do so would indeed be permitting them both to appropriate and reprobate." 13. Needless to add, in the matters under Section 166 of the Motor Vehicles Act being summary procedure, reading of F.I.R. to the extent of or nature of events is permissible without examining the maker of the F.I.R. or without examining the panch in the panchanama. In the instant case, the panchanama and/or F.I.R. are placed by the claimants, consequently, the claimants can not be allowed to agitate not to read them 9 in evidence. Claimants will have to face consequences arising out such tender of documents. 14. The insurance policy under which the motorcycle was covered is part of record in each of the claim. It is valid insurance. The vehicle was purchased on 28.04.1997, it was new temporarily registered vehicle, and apparently it was insured for a period from 28.04.1997 to 27.04.1998. The accident has taken place intermittently on 17.05.1997. Reading the terms of the insurance, it is obvious there was no coverage of risk in the event, of carrying explosives. It was in detriment and breach of the insurance policy and hence the insurance company rightly stated that the question of policy being operative would not convey any justification for the learned Member for a award against insurance company. 10 15. It is more than clear, the motor cycle as stated above was new vehicle it was without valid R.T.O. permission to play on road, as there was no permit. 16. In the matter of National Insurance Co.Ltd., V/s Challa Bharathamma and others (A.I.R. 2004 S.C.W. 5301), Lordships of the Apex Court have considered the events and observed that in such eventuality insurer is proved to be not liable to pay compensation, however, directed payment considering beneficial object of Act, though in law it had no liability. 17. The above discussion of events unfortunately for the claimants and legally for the appellant-insurance company establish that plying of motorcycle carrying explosives by deceased on road at the 11 material time on 17.05.1997 at 7.45 a.m. in breach of terms of insurance policy and its outcome would be the insurance company will not be answerable to meet the respective claims, in its latter and spirit as per award. 18. Other contentions raised by the Counsel for the appellant is excessive award however, though I find substance in such contentions of Mr.Upadhye as he is supported with the legal position, I shall deviate to deal with the same, as interested owner of the vehicle has not come before this Court challenging the quantum. 19. In the result appeals succeeds, the order in each of the claim Petition being M.A.C.P. NOs.229/2002, 225/2002, 228/2002 and 230/2002, recorded by the learned Member, Motor Accident Claims Tribunal, Sangamner is set aside to the 12 extent of appellant-insurance company. No costs. 20. The amount deposited by the insurance company be remitted back. 21. Mr.Bedre's request for disbursement of the amount deposited by the appellant- insurance company logically can not be entertained as the appellant-insurance company is held not liable to meet the claim, it is seldom to direct it to deposit the amount and then to recover from the owner of the vehicle. [ K.U.CHANDIWAL ] JUDGE gas/fa4308.08