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Madhya Pradesh High Court · body

2013 DIGILAW 152 (MP)

National Insurance Co. Ltd. v. Madibai

2013-02-05

J.K.MAHESHWARI

body2013
ORDER 1. Being aggrieved by the common award passed on 25.10.2005 passed by Addl. MACT, Dhar in claim case No. 43/03, 47/03, 44/03 and 45/03, these 4 appeals have been preferred by the insurance company assailing the finding of joint and several liability, against the insurance company and owner. 2. As per claim averments, on 15.10.2002 the villagers of village lbrahimpur came for submerging the idol of Goddess Durga in a tractor bearing No. MP11 A/1244 and trolley bearing No.MP11 A/1245 while they were going back on foot, the said tractor-trolley overturned, resultantly Ranjit and Mansharam died and Dinesh and Smt. Shakuntalabai received injuries. The L.Rs. of deceased as well as injured persons filed respective claim petitions seeking compensation under section 166 of Motor Vehicles Act as specified therein. The insurance company by filing the written statement relying upon the contents of FIR has taken defence that when the injured and deceased persons were going back in tractor trolly itself, it was overturned with the result Mansharam and Ranjit died and Dinesh and Shakuntalabai received injuries, however the story as narrated is only to fasten the liability against the company and contrary to the record. The Claims Tribunal while allowing the claim petition and granting the compensation to the L.Rs. of deceased as well to injured recorded the findings that due to rash and negligent driving of the driver of the tractor trolly it was overturned. It was further held that looking to the oral evidence adduced in a claim case the contents of FIR cannot be believed, however, relying upon oral testimony of the witness, found that story narrated in the claim petition is fully proved, therefore holding the insurance company jointly and severally liable to pay compensation for the amount so awarded, the claim petitions were allowed. 3. Mr. S.V. Dandwate, learned counsel appearing on behalf of the appellant/insurance company has strenuously urged that looking to the narration of FIR, it is clear that 30-40 persons came from village Ibrahimpur to submerge the Goddess Durga and while they were going back, the said tractor-trolly turned turtle due to rash and negligent driving. For the purpose of accident the said FIR has been relied upon but other contents of the FIR indicating that all these persons were sitting in the tractor trolley which turned turtle has been disbelieved only on the basis of oral testimony which in not permissible. For the purpose of accident the said FIR has been relied upon but other contents of the FIR indicating that all these persons were sitting in the tractor trolley which turned turtle has been disbelieved only on the basis of oral testimony which in not permissible. Reliance is placed on the decision of Hon. apex Court in the matters of Oriental Insurance Co.Ltd. Vs. Premlata Shukla, 2007 ACJ 1928 and National Insurance Co.Ltd. Vs. Rattani and others, MACD 2009(SD) 100, wherein it was observed that findings of joint and several liability recorded by the claims tribunal is unsustainable, however exonerating the insurance company, the owner and driver only may be directed to pay the amount of compensation so awarded by the tribunal. 4. Mr. V.S. Chauhan, counsel representing the claimants contends that testimony of the witnesses recorded in a claim case ought to have been relied upon without proof of the contents of the FIR by the insurance company. It is submitted by him that insurance company is unable to prove the contents of FIR by calling the lodger or scriber of the FIR in witness box to prove the same, in absence of such evidence the contents of the FIR cannot be relied upon and in contradistinction to the same the oral evidence adduced in the claim case has rightly been relied upon by the Claims Tribunal. It is further contended by him that cross objections have been filed seeking enhancement of compensation in the individual case which may be considered and amount so awarded by the Tribunal may be reasonably enhanced. In alternative, it is submitted that arising out of the same accident, 12 claim cases were filed in different Courts, out of them in 8 claim cases insurance company has been exonerated but finding to pay and recover has been recorded. The copy of the award dated 21.8.2006 passed in claim case Nos. 63/03, 64/03, 65/03, 66/03, 67/03, 68/03, 69/03 and 70/2003 has been filed wherein on exoneration of insurance company, findings to pay and recover has been recorded. Against the award passed in those cases, the insurance company accepting the finding to pay and recover has paid them compensation. In such circumstances, atleast the finding of pay and recover may be recorded looking to the aforesaid fact. 5. Mr. Against the award passed in those cases, the insurance company accepting the finding to pay and recover has paid them compensation. In such circumstances, atleast the finding of pay and recover may be recorded looking to the aforesaid fact. 5. Mr. Hemant Vaishnav, learned counsel appearing on behalf of the owner of the tractor-trolly has relied upon the judgment of Madras and Rajasthan High Court in the matters of New India Assurance Co.Ltd. Vs. G.Vijaya Kandiban and another, 2007 ACJ 2824 and United India Insurance Co.Ltd. Vs. Smt. Shanta Devi, MACD 2013(1) (Raj.) 35 respectively and contended that testimony of the witnesses in a claim case recorded after affirmation of oath any be relied upon in comparison to the FIR which has not been proved. In addition to it, relying upon the judgment of this Court in the matter of Surendra Gautam Vs. Smt. Jankibai, 2006 (1) MPWN 99 , contended that evidence brought in a criminal case does not have much relevance in deciding claim case, however it should not be relied upon and evidence brought in a claim case requires consideration. In such circumstances as per evidence brought on record in claim case it is apparent that when the claimants were going on foot, the tractor trolly overturned, with the result various persons received injuries. However considering the aforesaid submission, claims tribunal has rightly recorded the finding of joint and several liability which do not warrant any interference, therefore the appeal filed by the insurance company should be dismissed. 6. After hearing the counsel for parties and on perusal of judgment of Hon. Apex Court in the matter of Premlata Shukla (supra) it is apparent that FIR if relied upon for incident then its contents cannot be ignored and it ought to have been relied upon by the claims tribunal. In the context of said legal position, if the contents of the FIR is read over thereby it is clear that when the people of lbrahimpura came for submerging the Goddess Durga and going back the tractor trolley turtled wherein various persons received injuries and some of them died, who filed the claim petitions. The name of claimants in these 4 appeals, have also been specified in the said FIR. Other claimants whose claim cases have been decided, their names are there. The name of claimants in these 4 appeals, have also been specified in the said FIR. Other claimants whose claim cases have been decided, their names are there. In such circumstances for the purpose of occurrence of the incident if the FIR is relied, then other contents of the FIR cannot be ignored. It is to be observed here that the statement of the lodger of the FIR in a Court have not been recorded to prove the averments of the claim petition.Thus, the lodger of the FIR if not controverted the averments of the FIR and support the claim petition the contents of the FIR deserves to be relied upon in the facts of the case. It appears that simultaneous to the story so narrated in the FIR the claimants narrated the parallel story that when they were going back on foot after submerging the Goddess Durga the tractor trolly overturned and they received the injuries. In the considered opinion of this Court, in such circumstaces the contents of FIR cannot be ignored in the context of the oral evidence brought in a claim case, therefore findings recorded by the claims tribunal regarding joint and several liability against owner, driver and insurance company do not appear to be justifiable, and therefore set aside. 7. It is to be observed that after setting aside the finding of joint and several liability and exonerating the insurance company in a case where the passengers going in a tractor trolley, the findings to pay and recover ordinarily is not recorded by this Court but looking to the peculiar facts of the present cases wherein 12 claim petitions were filed out of them in 8 claim petitions bearing Nos.64/03 and 65/03 the claims tribunal vide award dated 21.8.2006 directed that looking to the contents of the FIR, the findings of joint and several liability is not proper but insurance company shall pay and recover the said amount against the owner and driver. In furtherance of the said award, accepting the liability of pay and recover, the insurance company in these 8 cases paid the amount and is taking action for recovery. In the present 4 cases, as per directions of this Court, half of the amount so awarded by the claims tribunal has been deposited. In furtherance of the said award, accepting the liability of pay and recover, the insurance company in these 8 cases paid the amount and is taking action for recovery. In the present 4 cases, as per directions of this Court, half of the amount so awarded by the claims tribunal has been deposited. In such circumstances it would be in the interest of justice to direct that insurance company shall pay the remaining amount also and may recover the entire amount against owner and driver initiating the separate proceedings in this regard. In view of the foregoing discussion, argumnets advanced by Mr. Hemant Vaishnav, Adv. with regard to decision rendered by Madra and Rajasthan High Court is not acceptable in the light of the facts of this case as described hereinabove, therefore the argument is hereby repelled. 8. Now coming to the cross objections filed by the claimants it is seen from the record that insurance company by filing these 4 appeals have assailed the finding of liability and the claimants were at liberty to file the appeals seeking enhancement, however in an appeal filed by the insurance company only assailing the liability without challenging the quantum, the cross objections filed by the claimants seeking enhancement relating to quantum is not tenable, therefore on the basis of cross objections filed by the claimants enhancement cannot be directed because said objections are not maintainable. 9. In view of the foregoing discussion, the appeal filed by the insurance company assailing the liability is hereby allowed. The findings of joint and several liability stands set aside and in the peculiar facts and circumstances discussed hereinabove, the direction to pay and recover is hereby ordered. It is made clear that insurance company after payment of amount of compensation, may recover the entire amount against owner and driver. The cross objections filed by the claimants stands dismissed as not maintainable. Parties shall bear their own costs.