THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY CIVIL MISCELLANEOUS APPEAL No.1845 of 2003 Date:16.09.2010 Between: Palli Chinna Rao ..... Appellant AND Reddy Sankara Rao and others. .....Respondents Counsel for the Appellant: Mr. Aravala Rama Rao Counsel for Respondent No.2: Mr. Kuriti Bhaskar Rao Counsel for Respondent No.3: Ms. Aruna Yalagiri The Court made the following: ORDER: This Civil Miscellaneous Appeal arises out of the award dated 10.05.2002 in O.P.No.232 of 1999 on the file of the Motor Accident Claims Tribunal-cum-Additional District Judge’s Court, Vizianagaram. The claimant in the O.P. is the appellant in this appeal. The appellant has filed the abovementioned O.P. claiming compensation of Rs.2,20,000/- against respondent Nos.1 to 3 for the injuries suffered by him while getting down from the lorry bearing No.AP T 139. The appellant’s version as stated in his O.P. in brief is that he has boarded the lorry when it was stopped near Champavathi bridge Patha Srirangarajapuram and that when he was trying to get down, in that process, he fell down and received injuries allover the body and that he was admitted in Government Hospital, Vizianagaram and treated in the hospital. The appellant alleged that on account of rash and negligent driving of the driver of the lorry, he fell down and sustained injuries. Both the owner and insurance company, respondent Nos.2 and 3, have filed separate counter-affidavits. While respondent No.2 pleaded that the appellant is a gratuitous passenger, it is the case of respondent No.3 that the accident did not occur on account of rash and negligent driving of the driver of the lorry and that therefore, respondent No.3 is not vicariously liable for the injuries sustained by the appellant. In support of his plea, the appellant examined himself as P.W.1 and the Doctor – Mr. A. Sree Rama Murthy as P.W.2. Respondent No.3 has examined R.W.1, its Senior Assistant. The Tribunal, after considering the oral and documentary evidence, rejected the claim of the appellant on the ground that he has failed to establish that the accident has occurred on account of rash and negligent driving of the driver. At the hearing, Sri A. Rama Rao, learned counsel for the appellant, contended that in his evidence, the appellant has clearly stated that on account of the rash and negligent driving of the driver of the lorry, the accident has occurred. He further contended that Ex.A-1 - copy of F.I.R. in Crime No.79 of 1998 clearly shows that the driver of the lorry has accompanied the appellant and therefore, he could not have attributed negligence to him. A perusal of the impugned award shows that the Tribunal has taken into consideration the contents of Ex.A-1 and concluded that as the appellant failed to attribute negligence to the driver in his report lodged to the Police, the appellant has not established the plea of rash and negligent driving of the driver. The Tribunal further held that the appellant failed to examine the driver of the lorry who would have been the appropriate witness to speak to the manner in which the accident had occurred. In my opinion, the Tribunal cannot be said to have committed any error in taking into consideration the contents of Ex.A-1 in order to test the veracity of the plea of the appellant. Though the contents of F.I.R. do not constitute conclusive evidence, at the same time, they can be taken into consideration in order to test the credibility or otherwise of the plea of the claimant, because F.I.R constitutes the earliest version of the victim or any person giving report on his behalf. Had there been negligence on the part of the driver, there would not have been any reason for the appellant to refer to that in his report. As regards the submission of the learned counsel for the appellant that as the driver has accompanied his client to the Police Station, he could not attribute negligence to him, no such stand has been taken by the appellant in his evidence. In the absence of his testimony to that effect, it is not possible for this Court to accept this submission of the learned counsel. In the light of the above reasons, I do not find any reason to interfere with the impugned award and the Civil Miscellaneous Appeal is accordingly dismissed. ________________________ C.V.NAGARJUNA REDDY, J 16th September, 2010 GHN