THE HON’BLE MR. JUSTICE R. KANTHA RAO C.M.A.NO.1875 of 2001 Dated:08.04.2010 BETWEEN: G.Vanamalamma .. Appellant And Sri Abdul Haq and another .. Respondents * THE HON’BLE MR. JUSTICE R. KANTHA RAO + C.M.A.NO.1875 of 2001 % Dated:08.04.2010 # G.Vanamalamma .. Appellant And $ Sri Abdul Haq and another .. Respondents ! Counsel for the Appellants: Mr. GA.Rangacharyulu ^ Counsel for the Respondent : Mr V.Padmanabha Rao <GIST: > HEAD NOTE: ? Cases [1] 2009 ACJ 925 HON’BLE SRI JUSTICE R. KANTHA RAO C.M.A.NO.1875 OF 2001 JUDGMENT: This appeal is filed against the order, dated 15.12.2000 passed by the Motor Accidents Claims Tribunal-cum-II Additional District Judge, Vijayawada in M.V.O.P.No.695 of 1997 2. The appellant is the mother of the deceased Gorre Nagamani Rao, who was working as cleaner on lorry bearing No. ATK 2864 which met with accident on 03.05.1997 at about 17.00 hours. Admittedly, the accident took place while the said lorry was proceeding with paddy load from Gudivada to Akividu and when the lorry reached near fish company at Chavalipadu. 3. In her claim petition filed under Section 166 of the Motor Vehicles Act, the appellant claimed Rs.1,00,000/- as compensation on account of the death of the deceased, who was aged 30 years on the date of accident. 4. The learned Tribunal held enquiry into the claim petition wherein the appellant examined PWs.1 and 2 and marked Exs.A1 and A.2, the respondent No.2 – insurance company examined its Assistant Administrative Officer as RW.1 and marked Ex.B1-copy of policy of insurance. On hearing both parties and upon considering the material on record, the learned Tribunal arrived at the conclusion that the petitioner failed to establish that the accident occurred due to rash and negligent driving/fault of the driver of the lorry and consequently granted compensation under no fault liability as provided under Section 140 of the Motor Vehicles Act and awarded compensation of Rs.50,000/- only to the claimant/appellant. The appellant assails the said finding in the present appeal by contending that the conclusion arrived at by the Tribunal is contrary to the facts and circumstances of the case and without reference to Ex.A.1 and the evidence available on record, therefore, it is liable to be set aside and an award be passed for the entire amount claimed directing the owner of the lorry and the insurance company to pay the same jointly and severally. 5. I have heard the learned counsel appearing for the appellant as well as the learned counsel appearing for the second respondent-insurance company. 6. In the first place, it has to be seen that the appellant averred in the claim petition that while the lorry was on the way from Gudivada to Akividu carrying paddy load and when it reached Chavalipadu village near fish company, the deceased who sat on the lorry, fell down from the running lorry due to rash and negligent driving of the driver of the lorry and thereafter, the driver of the lorry ran away from the place of accident. This is specifically mentioned in para 26© at page 5 of the claim petition. Thus, from the averments of the claim petition, there is no dispute about the fact that it is the version of the appellant that the deceased who was the cleaner was sitting on the paddy load of the lorry at the crucial time when the accident took place. 7. It is also mentioned in Ex.A.1-copy of the first information report in Crime No. 45 of 1997 of Mandavalli Police Station, Krishna District that the deceased was sitting on the paddy load kept on the lorry and the accident occurred as a result of the driver driving the lorry in a rash and negligent manner, due to which the deceased fell down and the rear wheels of the lorry ran over him. Since the claimant relied on Ex.A.1-F.I.R., she cannot disown the contents mentioned in the FIR at the subsequent stage. However, the learned counsel appearing for the appellant would submit that FIR was based on the information furnished by the third party to the informant and the contents therein cannot be used against the appellant. In NATIONAL INSURANCE CO. LTD v RATTANI AND OTHERS[1] the Supreme Court held in categorical terms that a party relying on the contents of the first information report and brought on record of the said document as exhibit cannot be permitted to contend that the contents therein are not binding on him. 8. The learned counsel appearing for the appellant had drawn my attention to the evidence of PW.2-B.Satyanarayana, who claims to be an eye witness to the accident. PW.2 has stated in his deposition that on that day the deceased sat on the top of the stationed lorry tying the luggage with rope and in the mean time, the lorry driver moved the lorry, on account of which, the deceased fell down and the rear wheels of the lorry ran over him. His evidence is that after the accident, the police officials came and enquired him about the accident. According to the learned counsel appearing for the appellant, since the evidence of PW2 being the only substantive piece of evidence can be relied upon to base a decision, but the Tribunal below unjustly rejected his version and the said finding is liable to be set aside. Here it may be noticed that in the written statement filed by the second respondent-insurance company before the Tribunal, it has been specifically contended as follows: “4. It is learnt that the driver of the lorry bearing registration No.ATK 2864 was manning the vehicle at a normal speed at the time of the accident. Admittedly, the deceased Nagamanirao was traveling on the paddy load that was carried in the said lorry. Under the provisions of the Motor Vehicles Act no person is permitted to travel on the load that is being carried in the lorry. The deceased Nagamani rao thus by traveling on the paddy load in the lorry has violated the provisions of Motor Vehicles Act and also the condition of the motor vehicle insurance policy. The fact that the deceased Nagamani Rao fell down under rear side tyres of the lorry clinchingly prove that there is no negligence or rashness on the part of the lorry driver. ” 9. Obviously therefore, after receiving notices in the claim petition, the insurance company took a specific plea that travel by the cleaner on the pady load of the lorry is prohibited and the accident had not occurred due to rash and negligent driving/fault of the driver of the offending vehicle and therefore, the insurance company is not liable to pay compensation. 10. Despite specific plea in the written statement and an issue being framed by the Tribunal as to whether the accident was due to rash and negligent driving of the driver of the lorry bearing No. ATK 2864, the appellant, who was examined as PW.1 did not state in her chief-examination before the learned Tribunal as to why she has not mentioned in the claim petition that the deceased was involved in the accident while sitting on the paddy load of the stationed lorry and as a result of the driver starting the lorry suddenly in a rash and negligent manner without observing that the deceased was still on the paddy load. Moreover, she only stated in her evidence before the Tribunal that the deceased was working as a cleaner at the time of accident, the accident took place near Fish company at Chavalipadu and somebody informed her about the accident and she filed the claim petition claiming compensation of Rs.1,00,000/-. 11. Learned counsel appearing for the second respondent- insurance company invited my attention to Section 123 of the Motor Vehicles Act, which is as follows: “123.Riding on running board etc: (1) No person driving or in charge of a motor vehicle shall carry any person or permit any person to be carried on the running board or otherwise than within the body of the vehicle. (2) No person shall travel on the running board or on the top or on the bonnet of a motor vehicle. 12. Therefore, as per the above mentioned provision, it is obvious that no person even he be the cleaner is not permitted to travel by sitting on the top of the lorry, the travel as such is prohibited under the Act and thus, even if it is not specifically mentioned in the stipulations of the policy, it amounts to violation of the specific provision under Section 123 of the Act and the same is contrary to law. 13. The learned Tribunal considering the averments of the claim petition and also the contents of the FIR –Ex.A.1, in my considered view has rightly rejected the testimony of PW.2 which is contrary to the specific plea of the appellant-claimant. Though FIR is not a substantive piece of evidence, it can be used for the purpose of testing the veracity of the version of the claimant’s case as to the manner in which the accident said to have taken place. Further in her evidence, PW.1 stated that the claim petition was drafted by her advocate on her instructions and consequently she is estopped from contending that the contents mentioned in the claim petition relating to the manner of occurrence of accident are not correct. It is true that the claimant (PW.1) is not a direct witness to the accident. But she got it mentioned specifically in the claim petition as to how the accident occurred and thus she is estopped from adducing evidence which is contrary to her pleadings. Despite the specific plea taken by the respondent No.2-insurance company that the accident took place while the offending vehicle was in transit and when the deceased was traveling by sitting on the paddy bags loaded on the lorry and such a travel is prohibited under law, the claimant did not take any steps to amend the claim petition. 14. As already stated, in respect of the specific contention raised by the second respondent-insurance company in the written statement to the effect that the deceased was not permitted to travel on the paddy load. the appellant, who was examined as PW.1 did not clarify the inconsistent versions relating to the manner of occurrence of accident in the claim petition and the first information report. In my considered view, therefore the learned Tribunal has not committed any error in rejecting the testimony of PW.2 and holding that the appellant has to establish that the accident occurred due to rash and negligent driving of the driver of the lorry but failed to establish the same. 14. For the foregoing reasons, the appeal fails, and the order passed by the Tribunal below is confirmed and accordingly, the appeal is dismissed. There shall be no order as to costs. _______________ R.KANTHA RAO,J Dated: 08.04.2010 Note: L.R. copy to be marked b/o kvrm [1] 2009 ACJ 925