1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 470 OF 2010 ALONG WITH CIVIL APPLICATION NO. 5153 OF 2008 The Manager, The New India Assurance Co. Ltd. ... Appellant v/s Smt.Vimal Tanaji Salunkhe & ors. ... Respondents Mr.S.M.Vidyarthi for the appellant. Ms.S.G.Thorat for respondent Nos.1 to 5. Mr.Ashok Misal for respondent No.6. CORAM: SMT.NISHITA MHATRE, J. DATED: 30TH MARCH, 2010 P.C.: 1. The first appeal has been preferred against the judgment and order of the Motor Accident Claims Tribunal, Sangli, dated 14.12.2007. By this order the Tribunal has negated the contention of the appellant that it is not liable for the accident. The Tribunal has held that the insurance company cannot be absolved of payment of compensation. 2 2. Mr.Vidyarthi appearing for the appellant submits that a private car was being used for ferrying the passengers for hire and reward. He submits that the applicants had annexed the First Information Report (in short, “F.I.R.”) lodged against the driver, to the plaint. According to him, the Tribunal should have therefore considered the same and held that the vehicle was being used for hire and reward. He relies on the judgment of the Supreme Court in the case of National Insurance Co. Ltd. v/s Rattani & ors., reported in 2009 (1) Transport and Accidents Cases, 420, in which the Supreme Court has observed thus - “7. We are not oblivious of the fact that ordinarily an allegation made in the first information would not be admissible in evidence per se but as the allegation made in the first information report had been made a part of the claim petition, there is no doubt whatsoever that the Tribunal and consequently, the appellate Courts would be entitled to look into the same.” 3. There is no doubt that the Tribunal must look into the first information report. But it was necessary for the F.I.R., which was annexed to the plaint, to be proved before it could be treated as evidence per se. 4. Mr.Vidyarthi also relies on para 13 of the judgment which reads thus - 3 “13. The question as to whether burden of proof 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 proof lay would still be liable to produce direct evidence to establish that the deceased and the injured passengers were gratuitous passengers. As indicated hereinbefore, the first information report as such may or may not be taken into consideration for the purpose of arrive at a finding in regard to the question raised by the appellant herein, but, when the first information report itself has been made a part of the claim petition, there cannot be any doubt whatsoever that the same can be looked into for the aforementioned purpose.” 5. In my opinion, the Tribunal has committed no error by not absolving the Insurance Company. There is no evidence on record whatsoever to indicate that the vehicle was being used for hire or reward. In any event, the Insurance Company has not examined any eye witness to prove its contentions. 6. The first appeal stands dismissed along with the civil application. 7. The amount which is deposited in the Trial Court shall be disbursed to the claimants immediately in accordance 4 with law. The amount of Rs.25,000/- which is deposited in this Court shall be transferred to the Motor Accident Claims Tribunal, Sangli, forthwith. 8. Mr.Vidyarthi appearing for the appellant seeks stay of this order for eight weeks. Stay refused. Parties to act on the authenticated copy of this order. ..... 5