,/-'" ./-' MISC^APPEAL N0. 2. b O QF 2005 MISCELLANEOUS APPEAL UNDER SECTI 173 OF MOTOR VEHICLES ACT. 1988 APPELLANT/ INSURER RESPONDENT/ [DRIVER] RESPONDENT/ [OWNER] ^National Insurance Co. Ltd. Through Assistant Manager, National Insurance Co. Ltd. B-l,Taha Complex, Ist Floor Ring Road, Priyadarshini Nagar, Bil'aspur, Tahsil and Dist.Bilaspur (Chhattisgarh) ERSUS ^L. Lekh Ram, S/o Mukhi Ram ^Kurmi, aged about 27 years 2'. J^am Sharan,S/o Mukhi Ram Kurmi, aged about 33 years y'Both R/o Vitlage Beejatarai Tahsil Mungeli, Dist.Bilaspur [Chhattisgarh] RESPONDENTS/ [CLAIMANTS] «a)Thanu Ram, S/o Gore Lal Kurmi, aged about 42 years, ^jkrishna Bai,W/o Thanu Ram aged about 39 years, ;u. Brihaspati, D/o Thanu Ram, aged about 14 years, Respondent-3c) being minor Through her'legal guardian- Father Thanuram, Respondents No. 3 a) to c) All R/o Village Beejatarai Tahsil Mungeli, Dist.Bilaspur [Chhattisgarh] HIGH COURT OF CHHATTISGARH L BILASPUR M. A. No. 260 of 2005 Appellant National Insurance Co. Ltd. Versus Respondents Lekh Ram 85 others MISC. APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988 DB: HonTale Shri I. M. Quddusi & Hon'ble Shri Manindra Mohan Shrivastava, JJ Shri Goutam Khetrapal, Advocate for the appellant. Shri Awadh Tripathi, Advocate for the respondents No. 1 and 2. Shri Amiyakant Tiwari, Advocate for the respondents No. 3 a) to c). ORDER (Oral) ( Passed on this 29th day ofApril, 2011 ) PerI. M. Quddusi J. The instant appeal, filed by the appellant/Insurance Company arises from the award dated 22.12.2004, passed by the Second Additional Motor Accident Claims Tribunal (FTC) , Mungeli, District - Bilaspur in Claim Case No. 43/2003, awarding a sum of Rs. 3,08,000/- along with interest at the rate of 9% p.a. from the date of the application. The ground of challenge in this appeal is so far as the Tribunal has iraposed the liability to pay compensation upon the appellant/Insurance Company. The facts, in brief, are that on 30.4.2003 deceased :C.hamman Lal went to village Dongsara in order to bring manure by the tractor- trolley bearing registration No. C.G. 10-A - 2669 and 2670. The tractor-trolley was owned by the non-applicant No.2 and at the relevant time the non-applicant No.l was driving the vehicle. When they were going to Bijatarai, on the way, due to rash and negligent •y 7. driving by the non-applicant No.l the tractor turned turtle and deceased Charaman Lal, who was sitting on the mudguard of the tractor, came under the tractor, resulting in his death. The matter was reported in the Police Station - Kunda wherein the offence was registered under Sections 279 and 304-A of the Indian Penal Code. The legal heirs of deceased Chamraan Lal filed a claim case under Section 166 of the Motor Vehicles Act, 1988 for award of a total compensation ofRs. 19,75,OOO/- under various heads. Leamed Claims Tribunal having regard to the facts situation and the evidence on record awarded a su'm of Rs. 3,08,000/- as compensation along with simple interest @ 9% per annum. We have heard learned counsel appearing for t;he parties, perused the lower Court's record and found that the F.I.R. was lodged by the owner of the tractor namely Rara Sharan who has proved his signature in the F.I.R. (Ex.A/2) but with regard to the contents of the F.I.R. he has stated that he had reported to the police that manure was loaded therein and he had not informed that the tractor was carrying the bricks. It is evident that the Claims Tribunal believing the statement of the owner of the tractor disbelieved the contents of the F.I.R. HonTale Supreme Court in Oriental Insurance Conapany Limited Vs. Premlata Shukla and others (2007) 13 SCC 476 in paragraphs 9, 12, 13, 14 and 15 has held as under : "9. Where an accident occurs owing to rash and negligent driving by the driver of the vehicle, resulting in sufferance of injury or death by any third party, the driver would be liable to pay compensation therefor. Owner of the vehicle in terms of the Act also becomes liable under the 1988 Act. In the event vehicle is insured, which in the case of a third party, having regard to sub-section (2) of Section 147. of the Act, is y H ^-y mandatory in character, the insurance coinpany would statutorily be enjoined to indemnify the owner." "12. In Narbada Devi whereupon reliance has been placed, this Court held that contents of a document are not autoniatically proved only because the same is marked as an exhibit. There is no dispute with regard to the said legal proposition." "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 be permitted to turn round 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 them." "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 having 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 inust 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 saine and wherefor consent of the other party has been obtaioed, the former in our opinion cannot be perinitted to turn round and raise a contendon that the contents of the documents had not been proved and, thus, should not be relied upon............" 8. "tln yiew of the above we are of the opinion that for the F.I.R. relied upon by both sides, the Tribunal could not have committed an illegality in relying upon one part of the F.I.R. and disbelieving the other part of the same. In the instant case the author of the F.I.R. \ £1 \, 9. 10. admitted his signature but not adraitting the contents of the F.I.R. and the Tribunal believing upon him did not believe on the contents of the F.I.R. The Tribunal has ignored the fact that in case the contents of the F.I.R. are believed and it is taken in to consideration that the tractor was loaded with bricks at the time of accident, there would have been breach of the conditions of the insurance policy as the insurance policy was a farmer's package policy and it could be used for agricultural purpose only and not for commercial purpose. Therefore, we are of the opinion that the Tribunal should have conducted proper enquiry to ascertain the veracity of the truth and should not have believed only the version of the owner of the tractor, rejecting the contents of the F.I.R. lodged by him, in a casual manner; more so when the insurer/appellant raised objection that there was breach of the conditions of the insurance policy and hence they are not liable to pay the compensation. Hon'ble Supreme Court in Raj Kumar Vs. Ajay Kumar & another{ 2010 (12) SCALE} in para 11 has held that "The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does notfunction as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to 'hold an enquiry into the claim'for determining the 'just compensation'. Therefore, in view of what has been observed by this Court ]?ereinabove, we are of the opinion that the matter requires reconsideration at the end of the Tribunal after conducting an enquiry as provided under Sections 168 and 169 of the Motor N ;.,\. Vehicles Act, 1988 and Rule 226 of the M.P./C.G. Motor Vehicles Rules, 1994. 11. For the reasons stated hereinabove, we allow this appeal in part, set- aside the impugned award dated 22.12.2004 and remit back the inatter to the Tribunal for decision afresh in view of the observations made hereinabove. No order as to costs. 12. Needless to mention that the parties shall be allowed to amend their pleadings, adduce further evidence again in support of their pleadings and may file further documents and get the documents verified ete. 13. Parties shall appear before the Claims Tr»bunalon 15th June, 2011. 14. The lower Courts record shall be sentliack fo.rth_with.— -_.- Sd/- .M.Quddusi Judge Sd/- Manindra Mohan Shrivastava Judge Thakur