Research › Search › Judgment

Madhya Pradesh High Court · body

2004 DIGILAW 909 (MP)

Nanhu Singh v. Jaheer Miscellaneous

2004-11-09

D.C.MAHESHWARI, DIPAK MISRA

body2004
JUDGMENT In this appeal preferred under section 173 of the Motor Vehicles Act, 1988 (in short 'the Act'), claimant has called in question the legal acceptability of the award dated 12.8.1999 passed by the Additional Motor Accidents Claim Tribunal, Maihar, District Satna in Claim Case No.7 of 1995 whereby the Tribunal has absolved the Insurance Company and fastened the liability of payment of compensation on the owner, solely on the ground that PW 2, the person who lodged the FIR before the Investigation Agency had stated that the petitioner claimant was travelling in a truck bearing registration No. UP 32A - 6597 and whereas in his statement in Court, he has stated that he was standing on the road side, where the truck hit him. As there was a discrepancy in the statement, the claimant cannot be treated as a passenger and, therefore, the claimant is not entitled to get any compensation from the Insurance Company. It is not disputed before this Court that the accident had occurred; that the claimant had sustained injury; and that the claimant has been awarded a sum of Rs. 40,000/- towards the compensation keeping in view the 45% permanent disability and that the owner has been made liable to pay the compensation, the core question that arises for consideration is whether the Tribunal while dealing with issue No. 6 (b) namely; whether there has been breach of policy has returned the finding correctly. Leal1!ed counsel for the appellant has drawn our attention to paragraph 5 of the award passed by the Tribunal wherein the Tribunal has laid emphasis on the factum that there was discrepancy in the statement made by PW 2 in the Court and the FIR and the FIR being initial report should be given credence. Being of this view, the Tribunal had arrived at the conclusion that the claimant was travelling as a passenger in the truck and hence, he was not covered by the Insurance Policy. Mr. Anil Lala, learned counsel has submitted that the Tribunal has grossly erred by placing reliance on the FIR. In the said FIR, it was categorically stated that the claimant was standing on the road side when the truck travelled from that place and injured him. That apart, submission of Mr. Lala is that PW 2 remained unshaken and that the accident had taken place when the claimant was standing on the road side. In the said FIR, it was categorically stated that the claimant was standing on the road side when the truck travelled from that place and injured him. That apart, submission of Mr. Lala is that PW 2 remained unshaken and that the accident had taken place when the claimant was standing on the road side. The seminal issue that arises for consideration is whether the Tribunal has rightly recorded the conclusion on the basis of the version of the FIR, which was lodged to set the criminal law in motion or should have given credence to the testimony of the witnesses which were recorded before him as the Motor Accidents Claim Tribunal. Learned counsel for the appellant has commended us to a Division bench decision rendered in the case of Mahila Dhanvanti v. Phulwant ( 1994 JLJ 192 = 1994 MPLJ 674). In the aforesaid case almost in similar circumstances in paragraphs 10 and 11, this Court had expressed the view as under: "10. Coming to the other contention that the deceased was travelling as a passenger and, therefore, the Insurance Company was not liable to pay any compensation, it has also no merit. True, the FIR (EX. D/2-C) and the statement of the Investigating Officer gives a version which support the case of the Insurance Company, but even assuming that the FIR is a public document, but it is the rule of law that it is not a substantive piece of evidence. It can be used only for the purposes of corroboration or contradiction of the maker only. The maker having not been examined by other side, the statement of A.S. Yadav carries no weight as he only investigated the occurrence. He is not an eye-witness to the occurrence. His testimony is of hearsay evidence, therefore, the conclusions which he drew after investigation cannot be taken into consideration unless supported by proper material. It is well-settled proposition of law that evidence recorded in criminal Court and the findings arrived at thereon should not be used in claim cases. Such evidence, for the purposes of claim cases is inadmissible. See, Shabbir Ahmad v. MPSRTC, Bhopal, AIR 1984 MP 173 . 11. It is well-settled proposition of law that evidence recorded in criminal Court and the findings arrived at thereon should not be used in claim cases. Such evidence, for the purposes of claim cases is inadmissible. See, Shabbir Ahmad v. MPSRTC, Bhopal, AIR 1984 MP 173 . 11. The fact that the deceased, at the time of accident, was travelling on the trolley or was going as a pedestrian, playing Dhapli has to be judged on the evidence adduced before the Tribunal which is not only proved by the claimants, but is admitted by the driver himself. It is not the case of the Insurance Company that the owner/driver have colluded with the claimants so as to get the compensation from the Insurance Company. Even if, for argument's sake it is assumed that the driver has stated so to save the owner and himself from liability, there is material on record that the finding arrived at by the Tribunal by rightly not taking into consideration the FIR and the statement of the Investigating Officer as no eye-witness to the occurrence was examined and no other independent legal and cogent evidence was produced to support the plea of Insurance Company, the interference in appeal in the finding recorded by the Tribunal is not warranted. Accordingly, the cross-objections have no merit and are dismissed." In the case of Laxmi v. Nandlal, 1999 (1) MPLJ 240 , another Division Bench had expressed the opinion that it is well settled in law that the evidence recorded in Criminal Case and finding recorded thereon should not be used in claim cases. In view of the aforesaid, we arrive at the irresistible conclusion that the finding recorded by the Tribunal on the basis of FIR is incorrect, unsound and in a way paves the path of vitiation. The Tribunal had erred by relying on the FIR as if it was the gospel truth or to put it differently, as if it was comparable to Einsteinean theory. In view of the aforesaid, we are not disposed to concur with the aforesaid finding and accordingly dislodge the same. The next aspect that arises for consideration is whether the amount of compensation awarded is justified. Mr. Lala, learned counsel for the appellant submitted that the appellant suffered 45% permanent disability, therefore, the grant of Rs. 40,000/- is unjust and inadequate. Mr. The next aspect that arises for consideration is whether the amount of compensation awarded is justified. Mr. Lala, learned counsel for the appellant submitted that the appellant suffered 45% permanent disability, therefore, the grant of Rs. 40,000/- is unjust and inadequate. Mr. Nair has not disputed the fact that the claimant had availed the treatment and the permanent disability that has been adjudicated cannot be questioned. In view of the aforesaid we are inclined to think the amount of compensation has to be enhanced. It is acceptable that the permanent disability had occurred on the left shoulder. Dr. S.K. Jain, PW 3, who examined the claimant, has opined that the claimant had suffered paralysis on the left side of the body due to injury on the left shoulder. Keeping in view the facts and circumstances of the case, we are disposed to think, the amount of compensation of Rs. 40,000/- should be enhanced to Rs. 90,000/-. Accordingly, the amount of compensation is enhanced. The entire amount shall be paid by the Insurance Company. The enhanced compensation shall carry interest at the rate of 9% per annum. The amount, which has already been paid by the Insurance Company earlier shall be deducted. At this juncture, Mr. Lala, learned counsel has submitted that the interest component may be fixed by composite sum by this Court so that the conflict would be avoided. Mr. Nair did not oppose the said proposal. Accordingly we think appropriate that the inherent amount should be Rs. 5,000/-. Both the parties agreed to the same. The balance amount of compensation including quantified interest shall be deposited before the Tribunal within three months from the date of receipt of the order passed today. The appeal is allowed to the extent indicated above. There shall be no order as to costs.