FA/3099/2008 1/23 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 3099 of 2008 With CIVIL APPLICATION No. 8328 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE H.K.RATHOD Sd/- ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the judgment ? YES 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= NATIONAL INSURANCE CO . LTD - Appellant(s) Versus MAGANBHAI ARJANBHAI RUDANI - Defendant(s) ========================================================= Appearance : MR MEHUL SHARAD SHAH for Appellant(s) : 1, None for Defendant(s) : 1, 1.2.1, 1.2.2,1.2.3 ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 22/07/2008 ORAL JUDGMENT 1. Heard learned advocate Mr. Mehul Sharad Shah appearing on behalf of appellant – National Insurance FA/3099/2008 2/23 JUDGMENT Company Limited. 2. The appellant has challenged the award passed by Motor Accident Claims Tribunal (Aux.) at Gondal in Motor Accident Claims Petition No.425 of 1997 decided on 10th April 2008. The Claims Tribunal awarded the compensation of Rs.3,03,300/- with 9% interest in favour of respondent claimant. 3. Learned advocate Mr. Shah raised contention before this Court that deceased was travelling in goods vehicle not as an owner of the goods and there was no evidence that he was owner of the goods travelling in goods vehicle and this fact was not established by the claimant before the Tribunal by leading proper evidence and therefore, Tribunal has committed gross error in coming to conclusion that deceased was travelling as an owner of goods. He also raised contention that driver and owner normally not to be examined, because, they are not giving cooperation for giving evidence against them, therefore, driver was not examined. The driver of goods vehicle was not having a legal and valid licence for transport vehicle, as such, no endorsement upon the licence as per Section 3 of the Motor Vehicles Act. He also raised contention that quantum fixed by Tribunal is in higher side, age of parents is not considered by the Tribunal, multiplier 13 is also on higher side and only 8 multiplier is to be applied and because deceased was unmarried, 2/3rd deduction is necessary, only 1/3rd dependency benefit FA/3099/2008 3/23 JUDGMENT is available to the claimants. He relied upon one decision of Apex Court in case of Thokchom Ongbi Sangeeta and Another v. Oriental Insurance Co. Ltd. and Others reported in 2008 ACJ 6. This decision of Apex Court held that if any passenger travelling in goods carriage, then, Insurance Company would have no liability, therefore, learned advocate Mr. Shah relied upon this judgment. 4. Learned advocate Mr. Shah also read certain portion of cross-examination of claimant before this Court for highlighting that while returning by the deceased in goods vehicle, at that occasion, he was not having the goods in rickshaw. He read certain discussion before this Court made in Para 8 and also submitted that Apex Court decision in case of National Insurance Co. Ltd. v. Bommithi Subbhayamma and others reported in 2005 ACJ 721 is not considered by Tribunal. Except that, no other submission is made by learned advocate Mr. Shah before this Court. 5. I have considered the submissions made by learned advocate Mr. Shah. I have perused the award passed by Tribunal and I have also considered the records of the case. The contentions raised by learned advocate Mr. Shah cannot be accepted on the ground that his contentions are totally contrary to the records. I have gone through the entire award, but, no such submission was made by a lawyer Mr. V.P. Doshi appeared on behalf of Insurance Company that driver of goods carriage is not having valid licence FA/3099/2008 4/23 JUDGMENT to drive transport vehicle. Merely raising the contention in written statement has no use, unless, it has been pressed into service by a lawyer emphases it that this is a contention which must have to be considered by the Tribunal. No such submission was made by the lawyer of the Insurance Company before the Tribunal that driver was not have valid licence of transport vehicle and no endorsement upon licence was made as per Section 3 of the Motor Vehicles Act. Therefore, naturally, Tribunal has no occasion to consider such contention because it was not raised before the Tribunal. 6. In respect to the contention that deceased was not travelling as an owner of the goods. The evidence of the complainant was appreciated by the Tribunal which has been discussed in award, where, in Para 2, it was made clear by the claimant that his son was working in ice factory, so, there is some genuine reason to believe the evidence given by claimant to believe that deceased was travelling as an owner of the goods ice, because, he was working in the factory of ice. That evidence of the claimant which was cross-examined by the lawyer of Insurance Company, but, facts remained that deceased was travelling as an owner of the goods has been proved satisfactorily by the claimant. The discussion in Para 6, where, it was admitted by the claimant that at the time of accident, his son was travelling in goods rickshaw and also he was travelling with ice in goods vehicle at the time of accident. This evidence is enough FA/3099/2008 5/23 JUDGMENT before the Tribunal to believe the claimant that deceased was travelling not as an unauthorised passenger but he was travelling as an owner of goods. The driver who was the witness whether deceased was travelling as an owner of goods or not, he can made answer to such question. Ordinarily, driver and owner should not come forward to give evidence, for that, Insurance Company cannot blame the claimant who has deposed before the Tribunal by giving clear evidence that deceased was travelling as an owner of the goods. Ordinarily, driver and owner should not come forward is not a defence or a ground not to believe the evidence of claimant. The owner and driver are party to the proceedings. They should have to come forward if claimant case was wrong or incorrect. Therefore, driver was not examined this aspect has been discussed by the Tribunal in Para 6 and 8 which are quoted as under : “6. Issue No.1 & 2 :- So far as the negligence is concerned, the applicant No.1, the father of the deceased has his affidavit at Exh.14 wherein, he has narrated all the facts as mentioned in his claim petition. He has been cross examined by the learned advocate for the opponent No.2 wherein, he has stated that deceased was his son and he admitted that he has not seen the occurrence of offence and also admitted that at the time of accident, his son was travelling in goods rickshaw. He has denied the fact that his son was travelling with goods but he has no FA/3099/2008 6/23 JUDGMENT evidence to show the same. He has voluntarily stated that his son was travelling with Ice in goods vehicle at the time of accident. He has further denied that at the time of accident, his son was travelling as an unauthorised passenger in goods rickshaw. But looking to F.I.R. Ex.15, it appears that the accident in question has happened and the complaint has been registered against the driver of goods rickshaw. But so far as the contention raised by the opponent No.2 that the deceased was not travelling in goods rickshaw with any goods on this point it is to be noted that the panchnama of scene of offence was carried out on 17/08/1997, while, the accident has happened on 16/8/97. So, it cannot be believed that the ice with the deceased was travelling in goods vehicle can remain still at the place of accident even on the next day, therefore, there is no any reference regarding goods in panchnama. So, there is a reason to believe that the deceased was travelling with goods on the vehicle. Moreover, if opponent No.2 wants to prove such fact that the deceased was not travelling with any goods in a goods vehicle, then it is the duty of the opponent No.2 to examine the driver of alleged goods rickshaw, moreover, the driver of alleged vehicle himself has not dared to step on the witness box to repute the allegations levelled against him. But neither opponent No.2 has examined driver of alleged vehicle nor driver himself has come forward before the tribunal FA/3099/2008 7/23 JUDGMENT to repute the allegations and hence, inference in adverse manner can be drawn against him. So, in view of above discussion and looking to F.I.R. and Panchnama, it clearly appears that the accident has happened due to rash and negligent driving of driver of alleged goods vehicle and there is a clear involvement of goods vehicle No.GJ-3T-5668. So, the applicants have proved issues No.1 and 2 that the accident has happened due to rash and negligent act on the part of driver of alleged vehicle and deceased died in the vehicular accident. Moreover, it also appears from the postmortem note of the deceased wherein death of deceased has been shown as causing due to accidental injury. Hence, I decided issues No.1 and 2 in the affirmative. 8. Now, so far as the question of liability to pay the compensation is concerned, as discussed above, the Tribunal has come to the conclusion that the accident has happened due to sole and sheer negligence on the part of driver of alleged goods vehicle and opponents have also failed to prove that the deceased was not travelling with goods even by not examining the driver of the offending vehicle, and due to the said vehicular accident, the death of deceased caused. Further, the opponent No.1 is an owner of involved vehicle and which appears from R.C. Book of involved vehicle produced at Exh.18. Further, the opponent No.2 is the insurer of FA/3099/2008 8/23 JUDGMENT offending vehicle goods rickshaw and it also appears from the copy of insurance policy produced vide Exh.23 that the policy covers the date of accident. But the learned advocate for the opponent No.2 has submitted his written arguments at Exh.26, while I have heard the arguments of learned advocate of applicant. In his written arguments Exh.26 the learned advocate for opponent No.2 has contended that looking to the FIR and Panchnama, there was no reference that the deceased was the owner of the goods or he was returning with goods and thereby he was travelling as an unauthorised passenger. He has produced and relied upon the decision reported in 2005 ACJ 721 in the case of National Insurance Company v. Bommithi Subbhayamma and others and submitted that applicants can get compensation from the owner and not from insurer. On this point, I would like to say further the applicant No.1 has stated in his affidavit that his son was working in Ice Factory and he was returning in goods vehicle with ICE. It is true that there was no reference of goods in panchnama. But, it is pertinent to note that the accident has happened on 16/08/97 and at that time, the deceased was returning and travelling with Ice in goods vehicle and the panchnama of scene of offence was drawn on 18/8/1997 i.e. next day of incident. Therefore, it cannot be believed that the goods Ice still remain intact on the next day at the time of panchnama. Therefore, this FA/3099/2008 9/23 JUDGMENT Tribunal is of the view that deceased was travelling with goods Ice. Moreover, if opponent No.2 wants to prove the said contention that deceased was not travelling with goods, then in that case, it is the serious duty of the opponent No.2 to thoroughly examine the driver of alleged vehicle who can be said to be best witness of incident and can say that whether the deceased was travelling with goods or not. But neither insurer i.e. opponent No.2 nor opponent No.1 have cared to examine the driver or that too driver himself has not stepped into witness box to depose on oath that whether the deceased was travelling with goods or its representative or not. Therefore, such facts remained unchallenged so far as the oral evidence of driver is concerned. Therefore, in view of above facts, both the opponents being an insurer and owner of alleged vehicle are jointly and severally liable to pay the amount of compensation to the applicants. Hence, the citation produced by the learned advocate for the opponent No.2 does not apply to the facts of the present case. Hence, I decide issue No.4 – accordingly.“ 7. Therefore, the contention which has been raised by Insurance Company positively when none of the person of Insurance Company was an eye-witness to the accident even though emphasis on that part that deceased was not travelling as an owner of goods on FA/3099/2008 10/23 JUDGMENT what basis, such contention was raised by the Insurance Company, actually, there is no base except presumption, but, according to law, the contention, which has been raised by party, must have to be proved by leading proper evidence before the Tribunal to the satisfaction of the Tribunal. Here, the submission of the lawyer is that though Insurance Company is having the contention raising specifically before the Tribunal, but, no evidence is led in support of his contention and then blame to the Tribunal that Tribunal has not considered this contention. Such approach of the part of the lawyer appearing on behalf of Insurance Company is not proper. Learned advocate Mr. Shah submitted that there is no proof of goods lying at a place of accident, but, it is a matter of common sense that ice would not be remained intact if the panchnama was not drawn on the said date immediately. That aspect was rightly appreciated by the Tribunal. 8. Learned advocate Mr. Shah submitted that in respect to the contention that driver was not having valid licence for transport vehicle has been raised in written argument. There is no much different in written statement and in written arguments in eyes of law. No question was put to anybody by the Insurance Company or led any proper evidence that whether driver was possessing valid licence for transport vehicle or not. Merely raising contention in written statement and written arguments without raising before the Tribunal or press into the service, there FA/3099/2008 11/23 JUDGMENT is no purpose behind to mention in written arguments. The Tribunal has to consider the oral submissions made by a lawyer on the basis of the records and proceedings before the Tribunal. Except written submission, there is no iota of evidence before the Tribunal about this contention that driver was not possessing valid licence for transport vehicle. Therefore, that contention was rightly not dealt with by the Tribunal and for that, Tribunal has not committed any error. If such contention was not dealt with by Tribunal, then, immediately, Insurance Company has to file an application for review. No affidavit is filed by learned advocate appeared on behalf of Insurance Company before the Tribunal that such contention was raised but not considered by Tribunal. The records of Tribunal is conclusive proof for higher forum. This view has taken by Apex Court in case of State of Maharashtra versus Ramdas Shrinivas Nayak and another reported in AIR 1982 SC 1249, the apex court has taken view that the Judge's record is conclusive, neither lawyer nor litigant may claim to contradict it except before the Judge himself but nowhere else. Relevant observations made by the apex court in para 4,5,6 and 7 of the said judgment are reproduced as under: 4. When we drew the attention of the learned Attorney General to the concession made before the High Court, Shri A. K. Sen, who appeared for the State of Maharashtra before the High Court and led the arguments for the FA/3099/2008 12/23 JUDGMENT respondents there and who appeared for Shri Antulay before us intervened and protested that he never made any such concession and invited us to peruse the written submission made by him in the High Court. We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public Policy bars us Judicial decorum restrains us. Matters of Judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. "Judgments cannot be treated as mere counters in the game of litigation". (Per Lord Atkinson in Somasundaran v. Subramanian, AIR 1926 PC 136). We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well-settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly FA/3099/2008 13/23 JUDGMENT recorded in a judgment, it is incumbent upon the party, while the matter is still, fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to 'the fact that the statement made with regard to his conduct was a statement that had been made in error (Per Lord Buckmaster in Madhusudan v. Chandrabati, AIR 1917 PC 30). That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an Appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of makingthe concession as recorded in the judgment. 4-A. In R. v. Mellor (1858) 7 Cox CC 454 Martin B was reported to have said : "We must consider the statement of the learned judge as absolute verity and we ought to take. his statement precisely as a record and act on it in the same manner as on a record of Court which of itself implies an absolute verity." 5. In King. Emperor v. Barendra Kumar Ghose, FA/3099/2008 14/23 JUDGMENT (1924) 28 Cal WN 170 : (AIR 1924 Cal 257) (FB), Page, J. said. ".............these proceedings emphasise the importance of rigidly maintaining the rule that a statement by a learned Judge as to what took place during the course of a trial before him is final and decisive; it is not to be criticised or circumvented; much less is it to be exposed to animad version." 6. In Sarat Chandra v. Bibhabati Debi (1921) 34 Cal LJ 302 : (AIR 1921 Cal 584), Sir Asutosh Mookherjee explained what had to be done : "It is plain that in cases of this character where a litigant feels aggrieved by the statement in a judgment that an admission has been made, the most convenient and satisfactory course to follow, wherever practicable, is to apply to the Judge, without delay and ask for rectification or review of the judgment". 7. So the Judges' record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the Judge, himself, but nowhere else.” FA/3099/2008 15/23 JUDGMENT 9. Similarly, in the matter of Daman Singh and others v. State of Punjab and others, etc. reported in AIR 1985 SC 973, Five Judges' Bench of the Hon'ble Apex Court observed the same in Para 13 of the said judgment, which is quoted as under : “13. The final submission of Shri Ramamurthi was that several other questions were raised in the writ petition before the High Court but they were not considered. We attach no significance to this submission. It is not unusual for parties and counsel to raise innumerable grounds in the petitions and memoranda of appeal etc., but later, confine themselves in the course of arguments to a few only of those grounds, obviously because the rest of the grounds are considered even by them to be untenable. No party or counsel is thereafter entitled to make a grievance that the grounds not argued were not considered. If indeed any ground which was argued was not considered it should be open to the party aggrieved to draw attention of the court making the order to it by filing a proper application for review or clarification. The time of the superior courts is not to be wasted in enquiring into the question whether a certain ground to which no reference is found in the judgment of the subordinate court was argued before FA/3099/2008 16/23 JUDGMENT that court or not. ?” 10. Considering the above two judgments, the Apex Court has held the said view in case of Shankar K. Mandal and Others v. State of Bihar and Others reported in (2003) 9 SCC 519. The relevant observation is quoted as under : “Held : It is not open for the appellants to take such stand before the Supreme Court, as they are bound by the observations of the High Court. If there was any wrong recording of the stands or a different stand was taken, the only course open to the appellant was to move the High Court. Statements of fact as to what transpired at the hearing, recorded in the judgment of the Court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. It is not open to the appellant to contend before the Supreme Court to the contrary. It is also not open to contend that a plea raised was FA/3099/2008 17/23 JUDGMENT not considered.” 11. The Tribunal has in light of the evidence of the claimant rightly come to conclusion that deceased was not unauthorised passenger in goods vehicle and he was travelling at the time of accident as an owner of goods, which covers by definition of any person under Section 147 is to be considered a third party covered by policy of Insurance Company which statutorily liable must have to be satisfied by the company and cannot avoid the liability as per recent decision of Gujarat High Court reported in 2008 ACJ 989 (Division Bench – Gujarat) in case of New India Assurance Company Limited v. Takhuben Raghabhai and Others, wherein, the Division Bench of this Court has considered that in goods vehicle, if the passenger is travelling as an owner of goods along with his goods, then, Insurance Company is liable to pay compensation or indemnify the owner as its squarely covered under Section 147 in definition of any person consider as third party and also, in a decision reported in 2008 ACJ 866 (Punjab & Haryana High Court) in case of National Insurance Company Ltd. v. Ram Chander and Another. 12. The contention raised by learned advocate Mr. Shah about multiplier looking to the age of parent is on higher side. The Tribunal has assessed