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Judgment
J. C. Doshi, J
Aggrieved and dissatisfied with the judgment and award dated 04/10/2011 passed by the Learned Judge of the Motor Accident Claims Tribunal, (Main), Kheda at Nadiad in Motor Accident Claim Petition 1521 of 1998, the appellant Insurance Company has filed the present appeal under Section 173 of the Motor Vehicles Act.
The short facts of the case are that on 04/06/1998 the Hasmukhbhai V. Parmar (deceased) and Narendrabhai Bhailaibhai Parmar petitioner of M.A.C.P.No.1524/98 both were standing at Dakor Bus Stand and they were waiting for bus. At that time, opponent no.1 came with his tempo no.G.J-7 X-7867 at stand and offered the deceased and another petitioner to travel in the said tempo till Anand. The deceased and Narendrabhai Bhailalbhai Parmar seated in the said tempo by paying fare of Rs. 10/-, which was accepted by driver of the tempo. After that the said tempo driver drove his tempo in rash and negligent manner and in full speed, and thereby lost the control over the steering and therefore, tempo turned turtle. That is how the accident occurred and the applicant and deceased sustained fatal injuries and Hasmukhbhai Parmar succumbed to the injuries sustained to him.
2.1 Two claim petitions were filed. In MACP No.1521 of 1998, the compensation of Rs.4,00,000/- has been claimed and learned tribunal after considering the evidence on record has awarded compensation of Rs.3,13,000/- which has been challenged in this appeal.
Heard learned advocate Mr.Daxesh Mehta for the appellant– insurance company. Though served, none remained present for the other side.
The appellant – insurance company has filed this appeal on the ground that tribunal committed serious error in believing that the premium for third party risk is taken and it covers the risk of the claimant travelling in the goods vehicle. Learned Advocate Mr.Mehta for the appellant has taken this court through the leaf of the policy produced on record to submit that observation, looks and finding of the tribunal is incorrect. He would submit that premium of Rs.75/- taken in the policy of the errant vehicle was for the purpose of third party property damage and not for the purpose of covering the risk of any passenger travelling in the vehicle being goods vehicle. He would further submit that apparently it is established on record that victim of the road accident was travelling in the tempo without goods which is in breach of the statutory provisions under Sections 147 of the Motor Vehicles Act, 1988. He would submit that therefore insurance company should be exonerated by allowing this appeal.
4.1 Learned Advocate Mr.Mehta would submit that MACP No.1524 of 1998 is dismissed on the ground of smallness of the amount involved in the matter and therefore dismissal of that petition would not be treated as res judicata.
4.2 By making above submissions, Mr.Mehta, learned advocate for the appellant would submit to allow this appeal.
To appreciate the submissions canvassed by learned advocate Mr.Mehta, a close look at Exh.38 the leaf of the policy indicates that premium of Rs.75/- was taken by the insurance company to cover the risk of third party property damage. The tribunal has read the same as premium taken to cover the risk of third party passenger travelling in the goods vehicle. Thus, the finding of the tribunal to that extent is incorrect.
The main ground of the insurance company in the matter on hand is that at the time of road accident the victim was travelling in the tempo goods vehicle and that being statutory breach would permit the insurance company to walk free from the liability to pay the compensation. Before, I examine the contention raised by learned advocate Mr.Mehta, let refer to object of MV Act being benevolent. In Vimla Devi Versus National Insurance Company Limited [2019 (2) SCC 186] wherein in paragraph 16 it has been held thus:
“16. At the outset, we may reiterate as has been consistently said by this Court in a series of cases that the Act is a beneficial piece of legislation enacted to give solace to the victims of the motor accident who suffer bodily injury or die untimely. The Act is designed in a manner, which relieves the victims from ensuring strict compliance provided in law, which are otherwise applicable to the suits and other proceedings while prosecuting the claim petition led under the Act for claiming compensation for the loss sustained by them in the accident.”
Now, if we surface the evidence on record, it would appear that the FIR of the accident was given by the driver of the tempo and he had succinctly narrated the scene of accident and further stated that he lost the control over the wheels of the tempo and tempo turned turtle resulted into causing injury to one claimant and death of another person. The first informant is the driver of the tempo in which the victim of the road accident was travelling. The driver of the tempo who has reached to the Police Station and lodged the FIR. It is obvious that he being the wrong doer would not put incorrect thing to the Police in the FIR. Thus, the FIR filed before the Police in this given circumstances at the behest of the tempo driver cannot be treated as a gospel evidence. The truthfulness to the FIR in this fact can always be doubted and therefore FIR can be taken up for the purpose that it demonstrate the road accident.
The claimant in the petition stated that after paying fare of Rs.10/- they climbed into the tempo to reach to the destination. The widow of the deceased entered into the witness box at Exh.130. In cross-examination, learned advocate for the opponent no.1 put suggestion that deceased sat in the tempo alongwith bunch of vegetables to which reply is given in affirmative. In cross-examination made by the insurance company, nowhere this fact has been put to challenge.
Another witness–Narendranbhai Bhailalbhai Parmar (Exh.31) who was co-passenger, is examined and in the cross-examination made by learned advocate for opponent no.1 it was suggested that he was travelling alongwith the bunch of vegetable and when he sat in the tempo, the bundle of vegetable was kept aside in the tempo. Both the suggestive questions are answered in affirmative. Learned advocate for the insurance company in cross-examination however does not quarrel with this position coming from the evidence. The evidence led before the tribunal if is contrary to the contents of other police records, the oral evidence given before the tribunal is required to be weighed and contradictions if any recorded in the police record and the oral evidence, then the oral evidence believed to be true. In the present case, the oral evidence of the claimants would established that at the time of road accident, deceased was travelling alongwith bunch of vegetables in the tempo. This fact has not been challenged by the insurance company. To rebut this fact established from the evidence led before the tribunal, the insurance company has not led any evidence of any other person, including the driver of the tempo. In fact, the insurance company has not led any evidence except producing the leaf of the policy and that being the position of evidence, it would establish that deceased was travelling in tempo alongwith the goods vehicle. The tribunal may erred in believing that the premium of Rs.75/- has been accepted to cover the risk of person travelling in the tempo yet the finding of the tribunal that the insurance company is vicariously liable to pay the compensation could not be disturbed on the ground that evidence on record proves that deceased was travelling in the vehicle alongwith goods in tempo.
In New India Assurance Co Ltd, Registered Oce At 87, Mg Road Versus Jashodaben Vithalbhai Rohit [2024 (0) GUJHC 35548] the co-ordinate Bench in regards to the term gratuitous passenger held that it is the duty of the insurance company to prove that deceased was travelling as gratuitous passenger in the offending vehicle. In paragraph 5 it has been observed thus:
“6. From the record, it transpires that the facts of the claimants show that the deceased was travelling in the vehicle in question with goods by deciding the fare; that the claimant no.1 states in her deposition that the deceased who was her husband, after finishing his work with Phillips Carbon company, was going to his home in the tempo by paying the fare with household goods and in the crossexamination by learned advocate for the appellant-insurance company, she has stated that her husband was carrying the food items like rice, wheat, pulses etc from Palej market; and it was for the insurance company to prove that the deceased was not travelling as owner of the goods and was travelling as gratuitous passenger without paying the fare, which is not done by the appellant-insurance company by examining the driver or owner of the vehicle in question”
As discussed herein above, the insurance company did not lead evidence; except copy of leaf of policy. The driver of the tempo has not stepped into witness box and disclose correct fact. Thus, the adverse inference can be drawn against the driver, owner and insurer.
For the reasons recorded above, this court does not find any error and fallacy in the finding of the tribunal. Accordingly, the appeal fails and is dismissed while confirming the finding of the tribunal. R & P be sent back.