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2011 DIGILAW 709 (JK)

United India Insurance Co. Ltd. v. Amina Begum

2011-12-15

Hasnain Massodi

body2011
1. The respondent No. 1 claiming that she was injured on 6th April, 2003 when the Vehicle No. JK02G 9235, driven by the respondent No. 3 herein, in rash and negligent manner, hit her at Dharmond, Batote, filed a claim petition before Motor Accidents Claims Tribunal, Ramban, asking for compensation due to her in terms of 2nd Schedule to Motor Vehicles Act, 1988. The claim petition was opposed by the Insurance Company-present appellant, on the grounds that the respondent No. 1 was traveling in the offending vehicle-goods carrier as a gratuitous passenger and, thus, not entitled to recover any compensation from the appellant. It was pleaded that the owner of the vehicle was guilty of breach of insurance policy in as much as the passengers were allowed to travel in a goods vehicle in violation of the terms and conditions of the Insurance policy and was not to be indemnified by the appellant. The driver and owner of the offending vehicle in their objections made a bald denial of all the averments made in the claim petition. 2. The Tribunal on perusal of the pleadings settled following issues; I. Whether on 06.04.2003 at 3.00 PM near Dharmond, Batote, respondent No. 1 while driving Truck No. JK02G-9235 in rash and negligent manner hit the petitioner who was standing on the roadside, as a result whereof she sustained permanent disability? OPP II. Whether the petitioner was traveling in the offending vehicle as gratuitous passenger in violation of the terms and conditions of insurance policy, if so, what is its effect? OPR3. III. If issue No. 1 is proved in affirmative, whether the petitioner is entitled to any compensation and from whom and to what extent? OPP. IV. Relief. 3. The respondent No. 1 appeared in the witness box to substantiate her case and examined Abdul Qayoom (Husband), Abdul Jabar and Dr. Sameer Abdullah to help her to discharge the burden to prove issues onus whereof was placed on the respondents. The appellant did not adduce any evidence in rebuttal. 4. The Tribunal on going through the pleadings and the evidence brought on the file held the respondent No. 1 to have been standing on the road side when offending vehicle hit her, resulting in injuries to her, rejected the appellant's case that respondent No. 1, at the time of accident, was traveling as a gratuitous passenger. 5. 4. The Tribunal on going through the pleadings and the evidence brought on the file held the respondent No. 1 to have been standing on the road side when offending vehicle hit her, resulting in injuries to her, rejected the appellant's case that respondent No. 1, at the time of accident, was traveling as a gratuitous passenger. 5. The Tribunal, accordingly, decided all the issues in favour of the respondents and against the appellant and held the respondent No. 1 entitled to recover Rs. 1.25/- lacs from the appellant on account of medicines, attendant/pain and loss of future income. The award dated 9th August, 2008 is assailed in the present appeal on almost same grounds as are urged in the objections filed by the appellant in opposition to claim petition. It is pleaded that the investigation in case FIR No. 40/2003 under Sections 279, 337, 338 RPC, Police Station-Batote reveals that respondent No. 1 was traveling as a gratuitous passenger in the offending vehicle and as charge-sheet was relied upon by the respondent No. 1, there was no reason for the Tribunal to believe respondent No. 1 and declare her to have been hit by the offending vehicle, while she was standing on the road side. The appellant contends that failure on its part to produce any rebuttal to the evidence adduced by the respondent No. 1, would not justify reliance on the respondent No. 1's evidence in face of the outcome of police investigation. 6. I have gone through the memorandum of appeal, record received from the Tribunal and have heard learned counsel for the parties. 7. Learned counsel for appellant, elaborating on the grounds urged in the appeal, argues that as respondent No. 1, while filing the claim petition, had enclosed with it a copy of the charge-sheet emanating from FIR 40/2003 under Sections 279, 337, 338 RPC, Police Station -- Batote, the respondent No. 1 was not entitled to place reliance on the copy of the charge-sheet selectively and while making use of the charge-sheet to prove that accident had taken place, ignore the part of the charge-sheet, wherein she was stated to have been traveling in the offending vehicle along with 10/12 other people at the time of accident. Learned counsel to buttress his argument, places reliance on law laid down in "Oriental Insurance Co. Learned counsel to buttress his argument, places reliance on law laid down in "Oriental Insurance Co. Ltd. v. Premlata Shukla & ors." 2007(5) Supreme 370 , wherein the Apex Court held, "Once a part of the contents of documents is admitted in evidence, party bringing same on record cannot be permitted to turn around and contended that other contents contained in rest part thereof had not been proved." 8. The Apex Court held the Tribunal not to have committed any illegality in placing reliance upon whole of the document, observing that once the contents of the document have been proved, question of reliance only upon a part thereof and not upon the rest, on technical ground that same had not been proved in accordance with law, would not arise. 9. In the afore-stated case, the document (First Information Report) was admitted to evidence and marked as Exhibit. The Tribunal relying upon the contents of the First Information Report dismissed the claim petition. In appeal, preferred before the High Court, it was contended that the First Information Report, wherein it was stated that driver of the offending vehicle was not driving the vehicle rashly and negligently, having been legally not proved, the driver, in presence of other evidence adduced by the claimant, was to be held to be guilty of driving the vehicle rashly and negligently. The Apex Court noticing that the First Information Report was produced and relied upon by the claimant held that the High Court could not have ignored the same. The Court repelled the argument that First Information Report was relied upon by the claimant only to prove the accident and once its contents were not proved, the Tribunal had not to rely on First Information Report and throw out the claim petition. 10. The law on the subject was reiterated in "National Insurance Co. Ltd v. Rattani and others" 2009 ACJ 925 , wherein the Supreme Court held that though ordinarily an allegation made in the First Information Report would not be admissible in evidence per se but once the allegation made in the First Information Report has been made a part of the claim petition, there is no doubt whatsoever that the Tribunal and consequently the Appellate Courts would be entitled to look into the same. In the afore-stated case, a reference was made in the claim petition to the First Information Report lodged against driver of the offending vehicle alleging rash and negligent driving. 11. Learned counsel for respondent No. 1, on the other hand, argues that mere reference to the First Information Report in the claim petition would not entitled the Tribunal to place reliance on it and reject the evidence adduced by the respondent No. 1 in support of her claim petition. It is contended that outcome of investigation per se is not to be taken as conclusive evidence of mode and manner in which the vehicular accident had taken place as it cannot be presumed that the Investigating Officer must have looked into and collected evidence on all aspects of the case. Learned counsel for respondent No. 1 seeks to draw support from law laid down in "New India Insurance Co. v. Raj Kumar and ors." 2010(II) SLJ 620, 2009 (3) JKJ 245 [HC]. Reference, in particular, is made to para-13 of the judgment. It reads: "Police investigations are conducted by the statutory authority in accordance with the mandate contained in Criminal Procedure Code. The investigating officer while conducting the investigation may lose sight of some facts which may have material bearing on the conclusion of investigation. The second aspect of the case is that if investigating police officer after investigation of the case makes report for closure of the case due to some deficiency, then he has to refer the matter to magistrate for passing of appropriate orders. In such eventuality the ld Magistrate before passing orders on closure of case has to issue notice to the informant or complainant as the case may be. Any order passed on such reports by the Magistrate cannot be said to be validate the investigation so conducted. The investigation conducted in a criminal case may have reliance and bearing on the proceedings which are being conducted in a civil court or in a tribunal. It may be considered as piece of evidence, but it cannot become basis for throwing out the case of the claimant. Probative value of such evidence has to be considered by the courts." 12. The Tribunal appears to have been influenced by failure on part of the appellant to adduce any evidence to substantiate its stand and to rebut evidence adduced by the respondent No. 1. Probative value of such evidence has to be considered by the courts." 12. The Tribunal appears to have been influenced by failure on part of the appellant to adduce any evidence to substantiate its stand and to rebut evidence adduced by the respondent No. 1. It needs to be pointed out that the respondent No. 1 and her witnesses deposed in one voice before the Tribunal that the respondent No. 1, at the time of accident, was not traveling in the offending vehicle and insisted that she was standing on the road side, when the offending vehicle, rashly and negligently driven by the respondent No. 3 -- herein, hit and injured her. In presence of no rebuttal from the appellant nor any evidence to help the appellant prove issue No. 2, the Tribunal held that the respondent No. 1 was standing on the road side at the time, she was hit by the offending vehicle. However, the Tribunal did not consider fall out of outcome of investigation in case FIR No. 40/2003 under Sections 279, 337, 338 RPC, Police Station -- Batote, pressed into service by the respondent No. 1 to reinforce her case. 13. From perusal of the record, it transpires that certified copy of the charge-sheet was appended by the respondent No. 1 with her claim petition. The respondent No. 1, thus, placed reliance on outcome of investigation in case FIR No. 40/2003 under Sections 279, 337, 338 RPC, Police Station -- Batote. In the charge-sheet, respondent No. 1 was cited as PW 6. The investigation as per the charge-sheet revealed that respondent No. 1 was traveling with other ten people, also prosecution witnesses, in the offending vehicle at the time of accident. The outcome of investigation, relied upon by respondent No. 1, in other words, belied her stand that she was standing on the road side at the time of accident and not traveling in the offending vehicle -- which admittedly was a goods vehicle, not permitted to carry the passengers and without any insurance cover for such passengers. Respondent No. 1 after an effort to draw support from the FIR and outcome of investigation, cannot be heard, raising a question mark on veracity of FIR and the end result of investigation conducted pursuant thereto. Selective reliance on a document produced and relied upon by the party to litigation, is not permissible under law. Respondent No. 1 after an effort to draw support from the FIR and outcome of investigation, cannot be heard, raising a question mark on veracity of FIR and the end result of investigation conducted pursuant thereto. Selective reliance on a document produced and relied upon by the party to litigation, is not permissible under law. Reliance placed by learned counsel for respondent No. 1 on "Raj Kumar's" case (Supra) is misplaced. The controversy here is not as to what probative value should be attached to the FIR or investigation conducted in a criminal case, but whether such investigation can be relied upon by a party selectively to prove one facet of his or her case, with liberty to dispute veracity and reliability of investigation as regards other facet of investigation not in his or her favour. 14. To sum up, once the respondent No. 1 produced and placed reliance on the investigation report (charge-sheet), the Tribunal ought not to have made selective use of the charge-sheet to hold that the vehicular accident had taken place and respondent No. 1 was injured and not rely on the part of investigation report indicating that respondent No. 1 was traveling as a gratuitous passenger in the offending vehicle at the time of accident and not standing on the road side as projected in the claim petition. This apart, law laid down in "Oriental Insurance Co. Ltd. v. Premlata Shukla & ors.", "National Insurance Co. Ltd v. Rattani and others" and "New India Insurance Co. v. Raj Kumar and ors." appear not to have been brought to notice of the Court and the Court rendered judgment in the appeal without having an advantage of going through law laid down in aforementioned cases. 15. For the reasons aforementioned, the appeal merits to be accepted and is, accordingly, allowed and impugned award dated 9th August, 2008 is set aside. Needless to mention that outcome of this appeal, shall not stand in the way of respondent No. 1, if so advised, to initiate appropriate proceedings for recovery of compensation from owner of the offending vehicle. 16. Record be sent down.