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Judgment
. Heard Mr. R. N. Ghuge, learned Counsel for the Appellant and Ms. Anvita Pande, learned Counsel for the Respondent No.1. None appeared for the Respondent No.2.
By the present Appeal, challenge is to the Judgment and order dated 14/11/2008 passed by the Motor Accident Claims Tribunal, Akola in MACP No. 167/2007.
The Appellant is owner of the vehicle. The original Claimant is present Respondent No.2 – Satish Prabhakar Khandekar.
In short, the case of the Respondent No.2/Claimant before the Claim Tribunal was that he was working as a driver to the Goods vehicle Auto-rickshaw owned by his brother i.e. present Appellant. On 16/6/2004 when he was carrying the goods in his Auto-rickshaw along with one labour namely Avinash Chondke, at about 1.00 a.m. to 1.30 a.m. near village Dagadpar while passing through the road from Digras, one truck coming from opposite side was in high speed by using upper lights, due to which, he was not able to see anything ahead and took Auto-rickshaw aside the road, thereby the Auto-rickshaw gave dash to one lime tree which was standing on the side of the road. As a result of which, accident occurred and in that accident his left eye-sight was affected and he caused permanent disability. According to the Respondent No.2/Claimant, the Appellant herein, who is his brother, lodged report to the Police Station regarding the accident and on the basis of information, crime was registered by the Police.
In view of injury caused due to the accident, the Respondent No.2 filed application under Section 163-A of the Motor Vehicles Act, 1988 for compensation before the Motor Accident Claims Tribunal, Akola. He has claimed the compensation of Rs.2,40,000/- in his Claim Petition.
The Respondent/Insurance Company appeared before the Claim Tribunal and strongly opposed the Application. According to them, as per the police case papers, it is crystal clear that the present Respondent No.1 was negligent in driving the Auto-rickshaw. The accident caused due to rash and negligent driving of the Respondent No.1, and therefore, he being a tortfeasor, is not entitled to claim any compensation from the insurance Company. Hence, according to them, in the facts and circumstances of the matter, the Respondent/Insurance Company is not responsible for payment of compensation to the Respondent No.2.
In the light of above submissions made by the learned Counsel for both parties, the learned Tribunal has framed issues while deciding the Claim Petition and recorded the evidence of the parties. Admittedly, only the Respondent No.2 and Appellant entered into the witness-box before the Claim Tribunal. The Insurance Company did not examine any witness on its behalf before the Tribunal.
The Respondent No.2 has reiterated the submission which was made in the application and thereby confirmed the fact that he was not negligent while driving his vehicle, rather same was occurred due to coming of truck from opposite side in a high speed and in order to protect himself, he has taken the Auto-rickshaw aside the road and then accident occurred.
The Respondent No.2 was cross-examined by the Respondent/Insurance Company before the Claim Tribunal. In the cross-examination nothing adverse has been elicited to prove that Respondent No.2 himself was responsible for the accident, nor any suggestion was given to him to demonstrate that it was the negligence on the part of Respondent No.2 in the matter.
Likewise, the Appellant/owner of the vehicle stated that though the Respondent No.2/Claimant is his brother, but he was employed with him on a regular salary. He also pointed out that he has maintained the said account and the Auto-rickshaw was used for carrying goods.
In the light of abovesaid factual position, the learned Tribunal has decided the Claim Petition. Perusal of the impugned Judgment reveals the fact that learned Tribunal has decided the entire Claim Petition on the basis of police case papers, particularly, FIR and spot panchanama etc. and on relying said documents, reached to the conclusion that it is the Respondent No.2, who was negligent in driving the vehicle and thereby the accident was occurred. Hence, by holding that Respondent No.2 being tortfeasor, is not entitled for the compensation from the Respondent/Insurance Company.
The learned Tribunal, however, by applying the principle of “pay and recover” while awarding the compensation of Rs.37,500/- directed the Insurance Company to first pay the said amount to the Claimant and recover the same from the Appellant.
In the background of abovesaid factual position, present Appeal came to be filed before this Court challenging the order on the ground that the learned Tribunal has committed an error of exonerating the Insurance Company from payment of compensation. In support of this submission the Appellant has relied upon the Judgments of Hon’ble Supreme Court of India in the cases of Jiju Kuruvila & Others V/s Kunjujamma Mohan & Others, 2013 (9) SCC 166; Murli & Another V/s State of Rajasthan, 2009(9) SCC 417; and Pramodkumar Rasikbhai Jhaveri V/s Karmasey Kunvargi Tak & Others, 2002(6) SCC 455.
The submissions of the Appellant before this Court is on the basis of abovesaid Judgments of the Hon’ble Supreme Court of India is that the learned Tribunal should not have relied upon the police case papers unless the same is corroborated by any direct or corroborative evidence. Hence, the conclusion drawn by the learned Tribunal on the basis of these documents is not sustainable.
In the light of the submission made by the Appellant, it will be relevant to record the paragraph No.20.5 in the case of Jiju Kuruvila (supra), which according to me, is relevant in the matter, which reads thus :
“20.5.The mere position of the vehicles after accident, as shown in a scene mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction, etc. depends on a number of factors, like the speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident was caused, but in the absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual.”
So also paragraph No. 34 in the case of Murli & Another (supra), which is also relevant in the present matter, which reads thus :
“34.The contents of the panchanama are not the substantive evidence. The law is settled on that issue. What is substantive evidence is what has been stated by the panchas or the persons concerned in the witness box. Again, even if we accept the extreme proposition, anything and everything stated in the panchanama can be read as the substantive evidence, still the fact remains that in this case, the witness who was supposed to have made the statement to the Magistrate, is not given an opportunity to explain the same. The portion marked from X to Y is in Column 7 of the panchanama, where PW-1 had made the statement as above. However, there is no cross-examination or no question put to him about the contents of Column 9, where he has taken the name of Heera. The statement in Column 7 amounts to his previous statement and unless he was confronted with the statements specifically and asked to explain, such statement cannot be used.”
Per contra, the learned Counsel for Respondent/Insurance Company has relied upon the Judgment of this Court in the case of HDFC Chubb General Insurance Company Ltd. V/s Shantidevi Rajbalsingh Thakur and another, 2007 SCC OnLine Bom 592, wherein the Hon’ble Supreme Court has observed in paragraph No.35 as under :
“35.In the case of Appaji v. M. Krishna, 2004 ACJ 1289 (Karnataka), in which the parents of the deceased driver of a scooter, who sustained fatal injuries applied under Section 163-A of the M. V. Act for compensation from the insurance company upon the claim of indemnity. It was held that Parliament did not intend to provide compensation to the person responsible for the accident on structured formula basis. Consequently, a person could not sue for compensation upon the tort or negligence on account of his own rash, negligent and imprudent act. It was observed that if that was so, a person could base his case upon his own fault and negligence and make an insurance company to pay for the same which is not the purpose of the legislation. In that case the meaning of the word ‘victim’ from Black’s Law Dictionary and Chambers 20th Century Dictionary came to be seen. Since the common sense meaning of the term ‘victim’ is a sufferer or a prey, it implies a person who has suffered pecuniary damage as a result of another’s activities. Consequently, it is in that sense that the term ‘victim’ in section 163-A of the M. V. Act also must be understood. It can, therefore, not include the person who is a victim of his own action. He must be a victim in contradistinction to the victimiser or the one who falls victim to his own action.”
On the basis of this Judgment the Insurance Company cannot be held responsible for payment in a case where the negligence is on the part of driver of the vehicle, who is tortfeasor. Hence, according to the Respondent/Insurance Company, the Respondent No.2 being a tortfeasor in the matter, is not entitled for any compensation from the Respondent/Insurance Company.
In the light of abovesaid legal position and on perusal of evidence placed on record, it is crystal clear that police documents, particularly, FIR, spot panchanama etc. can only be relied upon if it is supported by corroborative evidence. In the light of this factual position, I am of the opinion that the law laid down by the Hon’ble Supreme Court of India in the case of Jiju Kuruvila (supra) and Murli & Anr. (supra) is required to be considered as a correct position of law.
In the present case, the Appellant as well as Respondent No.2 entered into the witness-box and categorically stated as to how the accident was occurred. In their cross-examination nothing has been elicited to demonstrate that their evidence is not trustworthy. So also the insurance Company did not entered into the witness-box to establish the fact that Respondent No.2 is tortfeasor and thereby the Insurance Company is not responsible for payment of commendation.
In my opinion, if the Respondent/Insurance Company is coming with a case that Respondent No.2 being tortfeasor, and therefore, they are not responsible for payment of compensation, in that event instead of relying upon the police papers, which according to the settled position of law is not a substantive piece of evidence, should have recorded any oral evidence in support of the same. No efforts seems to have been taken by the Insurance Company before the Claim Tribunal to justify their defence.
The other contention of the Insurance Company before the Tribunal is that there is a breach of policy. According to them, the policy was for goods vehicle, but Respondent No.1, while driving the vehicle, was carrying one passenger, and therefore, the same amounts to breach of conditions. It is seen from the record that Appellant as well as Respondent No.2 has stated that the said person was not travelling in Auto-rickshaw as passenger, but was a labourer, and therefore, unless the Insurance Company established by independent evidence on record that the said person was gratuitous passenger, this submission cannot be accepted in the matter.
It is well settled position of law as laid down by the Hon’ble Supreme Court of India in the case of Lakhmi Chand V/s Reliance General Insurance, (2016) 3 SCC 100, wherein it is observed in paragraph No.16 as under :
“16.................... that the Insurance Company, in order to avoid liability must not only establish the defence claimed in the proceeding concerned, but also establish breach on the part of the owner/insured of the vehicle for which the burden of proof would rest with the Insurance Company........... Further, as has been held in B. V. Nagaraju that for the insurer to avoid his liability, the breach of the policy must be so fundamental in nature that it brings the contract to an end. In the instant case, it is undisputed that the accident was in fact caused on account of the rash and negligent driving of the offending vehicle by its driver, against whom a criminal case vide FIR No.66 of 2010 was registered for the offences referred to supra under the provisions of IPC.”
So also in the case of Fahim Ahmad and others V/s United India Insurance Company Limited and others, (2014) 14 Supreme Court Cases 148 the Hon’ble Supreme Court has observed in paragraph No.6 as under :
“6.Although the plea of breach of the conditions of policy was raised before the Tribunal, yet neither any issue was framed nor was any evidence led to prove the same. In our opinion, it was mandatory for Respondent 1 Insurance Company not only to plead the said breach, but also substantiate the same by adducing positive evidence in respect of the same. In the absence of any such evidence, it cannot be presumed that there was breach of the conditions of policy. Thus, there was no reason to fasten the said liability of payment of the amount of compensation awarded by the Tribunal on the appellants herein.”
In the light of this legal position, it was necessary for Insurance Company to avoid their liability to establish “Breach” on the part of owner of vehicle. This Court found that no attempts were made to prove the defence in the matter. In view of this factual aspect of the matter, the contention raised by the Respondent/Insurance Company is not acceptable in the matter.
In the light of abovesaid reasons, in my considered opinion, the learned Tribunal has committed an error by exonerating the Insurance Company from payment of compensation. The Insurance Company is responsible for payment of compensation amount awarded by the Tribunal to the Respondent No.2. Hence, I proceed to pass following order.
ORDER
First Appeal is allowed.
The Judgment and order dated 14/11/2008 passed by the Motor Accident Claims Tribunal, Akola in MACP No. 167/2007 is modified to the extent that the Insurance Company and Appellant are jointly and severally responsible for payment of compensation of Rs.37,500/- along with interest accrued thereon to the Respondent No.2/Claimant.
No order as to costs.