JUDGMENT : Both these appeals are arising out of the award dated 22nd December, 2009, passed by the II Member, Motor Accident Claims Tribunal, Shajapur, in Claim Case No. 28/2009. Misc. Appeal No. 841/2010 has been filed by the claimants while Misc. Appeal No. 540/2010 has been filed by the owner and driver assailing the finding of exoneration of the Insurance Company though there was insurance of the offending vehicle. 2. It was the case of the claimants that the driver of the tractor No. M. P. 42-A-0799 ploughing the field of deceased Kishore. At that time deceased along with Zahid was standing on the bank of the said field. The said tractor dashed Kishore and overturned wherein Kishore was died. It is said that he was having huge agricultural land and earning from it, however, compensation to the tune of Rs. 15,00,000/- was claimed by filing the claim petition under section 166 of the Motor Vehicles Act. 3. The owner and driver by filing their written statements had denied the accident inter alia contending that the driver was possessing the valid driving licence and the vehicle was insured with the Insurance Company, however, indemnifying the liability, if any, the Insurance Company ought to pay the amount of compensation. In the written statement of Insurance Company it was stated that the driver was not possessing the valid driving licence and there was a violation of the terms and conditions of the policy, therefore, the Insurance Company is not liable to pay the amount of compensation. It is also contended that as per the report of the Investigator as well as the FIR the deceased was sitting on a tractor along with Zahid and due to overturn of the said tractor Kishore died. In such circumstances there was a violation of the terms and conditions of the policy, therefore, the Insurance Company is not liable to pay the amount of compensation. 4. Learned Claims Tribunal believing the contents of the FIR (Ex. P-1) and disbelieving the statement of the lodger of the FIR namely Ritesh Patidar (AW-3) held that the accident has taken place when the deceased was sitting on a tractor which was overturned., however, treating it to be a violation of the terms and conditions of the policy, exonerated the Insurance Company and liability to pay compensation has been fastened against the owner and driver. The Claims Tribunal calculated the amount of compensation accepting the earning of the deceased Rs. 3,000/- per month after deducting 1/3rd towards personal expenses and applying the multiplier of 17 by adding Rs. 57,000/- in conventional head making the total sum of compensation Rs. 4,65,000/-. 5. Shri G. K. Neema, learned counsel representing the claimants have contended that looking to the Ex. P-17 and P-18, which are the Khasras of the agricultural land owned by deceased and Ex. P-21 and Ex. P-22 is the document of land indicating that deceased has taken these land of others for agriculture on Adhbatai and having earning of Rs. 1,00,000/- per annum in addition, however, prayed that the compensation awarded accepting the earning Rs. 3,000/- per month by the Tribunal is inadequate, which may be reasonably enhanced. 6. Shri Asif Warsi and Ms. Sonali Gupta, counsel representing the owner and driver contended that the FIR (Ex. P-1) lodged by Ritesh Patidar. The FIR is merely a corroborative piece of evidence and cannot be termed as a substantive evidence without its proof. The lodger of the FIR when appeared in a witness box and after affirmation of the oath narrated the story as pleaded in the claim petition. However, the statement of the claimant and lodger of FIR as deposed in the Court ought to be accepted in place of accepting the FIR. In support of such contention reliance has been placed on a judgment of this Court in the case of Oriental Insurance Co. Ltd. vs. Kamli and others, 2010 ACJ 1340 . Reliance has further been placed on a judgment of Himachal Pradesh High Court in the case of Oriental Insurance Co. Ltd. vs. Darshna Kalia and others, 2010 ACJ 2422 and the judgment of Madras High Court in the case of New India Assurance Co. Ltd. vs. G. Vijaya Kandiban and another, 2007 ACJ 2824 and also the judgment of Rajasthan High Court in the case of United India Insurance Company Ltd. vs. Smt. Shanta Devi and ors., MACD 2013(1) (Raj.) 35. In view of the foregoing it is urged that relying upon the testimony of the lodger of the FIR in claim case, the liability may be fastened against the Insurance Company. However, it is urged that the finding of the exoneration of the Insurance Company may be set aside. 7. In view of the foregoing it is urged that relying upon the testimony of the lodger of the FIR in claim case, the liability may be fastened against the Insurance Company. However, it is urged that the finding of the exoneration of the Insurance Company may be set aside. 7. Shri C. P. Singh, learned Counsel representing the Insurance Company contended that as per the judgments of Hon'ble Apex Court in the case of Oriental Insurance Company Ltd. vs. Premlata Shukla and others, reported in 2007 ACJ 1928 and in the case of National Insurance Co. Ltd. vs. Rattani and others, reported in 2009(3) MPLJ (S.C.) 11 = 2009 ACJ 925 , the FIR would not be admissible in evidence, but its allegation has been made the part of petition, however, the Appellate Court would be entitled to look into the same and in the facts of the said case, the Court ought to rely upon the contents of the said FIR. In such circumstances, the finding recorded by the Tribunal exonerating the Insurance Company and fastening the liability to pay compensation against the owner and driver do not warrant any interference. It is also one of his contention that when the owner and the driver by filing an appeal assailed the finding of exoneration of the Insurance Company, he is at liberty to argue in support of the finding of exoneration recorded by the Tribunal. On the point of quantum of compensation, it is submitted that the deceased was the agriculturist and the land which was owned by him is still lying with the legal representatives, however, it is only the loss of supervision, therefore, the tribunal has rightly calculated the compensation accepting the loss of supervision @ Rs. 3000/- per month after deducting 1/3 and applying the multiplier as per age. Therefore, on the point of quantum also, interference in the appeal filed by the claimant is not warranted. 8. After hearing learned counsel appearing on behalf of the parties first of all the argument seeking enhancement is required to be considered. In the present case the deceased was having the agricultural land as apparent from the Khasra entries Ex. P-17 and Ex. P-18. It further appears that he was engaged in taking the land on Adhbatai from different persons and having earning therefrom as reveals from the documents Ex. P-21 and Ex. P-22. In the present case the deceased was having the agricultural land as apparent from the Khasra entries Ex. P-17 and Ex. P-18. It further appears that he was engaged in taking the land on Adhbatai from different persons and having earning therefrom as reveals from the documents Ex. P-21 and Ex. P-22. In the oral evidence adduced by the claimants, the earning of the deceased was shown apart from his own land, and also from the land taken on Adhbatai vide documents Ex.-P/21 and Ex.-P/22. It is also stated that at present no responsible male member is in family to look after the agriculture owned by the deceased, however, their own land has been given on Adhbatai. In such circumstances, there is a loss of earning from their own land and also from the land of others. As per section 59 of the Evidence Act, when the oral evidence has been adduced, in support of the documentary evidence, it cannot be ignored until and unless rebutted by other side. In the present case, no evidence to deny the earning of deceased from Adhbatai or from own land which is now given on Adhbatai has been brought either by the owner or the driver or by the Insurance Company. In such circumstance, in the considered opinion of this Court, loss of earning to the legal heirs can safely be accepted Rs. 5000/- per month which annually comes to Rs. 60,000/-. Looking to the number of dependencies, if 1/3 is deducted towards personal expenses, then loss of dependency per annum comes to Rs. 40,000/-. At the time of death, the deceased was 32 years of age, however, multiplier of 16 would be applicable as per the judgment of the Hon'ble Apex Court in the case of Sarla Verma and others vs. Delhi Transport Corporation and another, reported in 2009(4) MPLJ (S.C.) 96 = 2009 ACJ 1298 . Accordingly, loss of dependency comes to Rs. 6,40,000/-. The Tribunal has awarded Rs. 57,000/- in conventional heads which in the facts of this case appears to be just. However, on adding the same, total sum of compensation comes to Rs. 6,97,000/-. On deducting the amount so awarded by the Tribunal Rs. 4,65,000/-, the net enhancement comes to Rs. 2,32,000/-. 9. Now the issue regarding liability requires consideration in view of the rival contention raised by the claimant, the owner, the driver and the Insurance Company. However, on adding the same, total sum of compensation comes to Rs. 6,97,000/-. On deducting the amount so awarded by the Tribunal Rs. 4,65,000/-, the net enhancement comes to Rs. 2,32,000/-. 9. Now the issue regarding liability requires consideration in view of the rival contention raised by the claimant, the owner, the driver and the Insurance Company. In this regard, the legal position annunciated in the judgment of Premlata Shukla (supra) is required to be considered first. The facts of the said case were, on having accident of Tempo Trax with the truck, the offending vehicle could not be traced out, however claim petition was filed against the owner, driver and the Insurance Company of the Tempo Trax, wherein the negligence of the driver of the Tempo Trax was pleaded by claimants and in the said context, Hon'ble Apex Court has observed that when the FIR has been relied upon for the purpose of proving the accident admitting the said documents by the claimant then the remaining contents of the FIR cannot be ignored by the Court. While in the case of Rattani (supra), the facts were that 30-40 persons were travelling as gratuitous passengers. Some of them sustained injury and some of them succumbed to death. However, the FIR indicates that they were travelling as passengers in a Barat, but in the claim petition, it was averred that they were representatives of the goods received in the marriage, therefore, the Court disbelieving the contents of the claim petition has relied upon the contents of FIR. In the said case, it was held that the persons were travelling as gratuitous passengers and not as representatives, however, exempted the Insurance Company from liability. It is to be noted here that in the case of Rattani and others (supra), Hon'ble Apex Court has observed that the FIR would not be admissible in evidence per se but as the allegation made in the FIR had been made a part of the claim petition, then there is no doubt whatsoever, the Tribunal and the Appellate Court would be looked into the same. 10. 10. Before the Division Bench of this Court in the case of Nanhu Singh vs. Jaheer and others, reported in 2006 ACJ 803 , it was held that when a person lodged the FIR before the Investigating Agency had stated that injured claimant was travelling in a truck whereas he deposed before the Tribunal that the injured was standing on a road side when truck hit him. In the said fact, it was held that the version of the FIR should not be given preference over the testimony of the witness recorded before the Tribunal, after affirmation of oath. It is further observed that the testimony recorded on oath before the Court should be relied upon corresponding to the contents of FIR. In the judgment of Kamli and others (supra) before the Single Bench of this Court, the same question arose for consideration wherein also in FIR, it was mentioned that deceased who was travelling in tractor trolley fell down and was run over by its rear wheel. The witness who lodged the FIR deposed on oath that the deceased was going on foot; he was hit from behind by tractor trolley. However the issue arose before the learned Single Judge of this Court whether the Tribunal was justified in relying upon the deposition of the witness on oath mulcting liability on the Insurance Company. In the said context, it was held that the FIR is not substantive piece of evidence and it cannot be placed on a pedestal higher than the statement recorded on oath. The Tribunal rightly accepted the deposition of the witness of the FIR recorded in Court and held that, the Insurance Company is liable to pay compensation. The similar issue has been decided by Himachal Pradesh High Court in the case of Darshna Kalia and others (supra) and also by Madras High Court in the case of G. Viyaya Kandiban and another (supra) and also by Rajasthan High Court in the case of Smt. Shanta Devi and others (supra). 11. In the case in hand, the FIR was lodged by Ritesh Patidar PW-4 inter alia stating that when the tractor was driven by respondent No. 1, deceased Kishor and Zahid were sitting on the mudguard of tractor which was overturned while ploughing the field. In the said incident, Kishor received injuries and succumbed to death. 11. In the case in hand, the FIR was lodged by Ritesh Patidar PW-4 inter alia stating that when the tractor was driven by respondent No. 1, deceased Kishor and Zahid were sitting on the mudguard of tractor which was overturned while ploughing the field. In the said incident, Kishor received injuries and succumbed to death. In the claim petition filed by the claimant, it was specifically pleaded that the offending vehicle tractor while ploughing their field dashed Kishor who was standing on the bank of the said field along with Zahid. Lodger of the FIR Ritesh Patidar PW-4 has supported the narration of the claimant's pleaded in claim petition stating that the tractor dashed the deceased Kishore who was standing on the bank of the field alongwith Zahid and overturned and due to injury, Kishor succumbed to death. In such circumstances, the statement of the lodger of the FIR, Ritesh recorded in Court after affirmation of the oath have more value than the contents of the FIR. It is to be further observed that the contents of the FIR has not been proved by calling the scriber of FIR in the witness box by the Insurance Company. It can safely be observed that the contents of the FIR may be used for corroboration, contradiction and omission and it cannot be said to be substantive piece of evidence until and unless it is proved by cogent and legal evidence. In such circumstance, the facts of the present case are entirely different from the facts of the case of Premlata Shukla (supra) and Rattani and others (supra). The facts of the present case is squarely similar to the facts of the Division Bench judgment of this Court in the case of Jaheer and others (supra) and also of the Single Bench Judgment in the case of Kamli and others (supra). In this respect, I respectfully agree with the view taken by the Madras High Court in the case of G. Vijaya Kandiban and another (supra), Himachal Pradesh High Court in the case of Darshna Kalia and others (supra) and Rajasthan High Court in the case of Smt. Shanta Devi and others (supra). 12. It is seen from the record that the claim Tribunal while recording the finding exonerating the Insurance Company has considered the contents of the FIR Ex.-P/1 and final report Ex.-P/3 and held that those documents have been proved. 12. It is seen from the record that the claim Tribunal while recording the finding exonerating the Insurance Company has considered the contents of the FIR Ex.-P/1 and final report Ex.-P/3 and held that those documents have been proved. In this regard, it is suffice to observe that mere exhibiting a document is not enough to held that the said document has been proved. Particularly, when the lodger of the documents has deposed before the Court contrary to the version of the FIR and supports the averments of the claim petition after affirmation of oath, then the statement of the lodger of the FIR recorded before the Court is on higher pedestal. Then, the finding recorded by the claim Tribunal of proving the FIR and exoneration of Insurance Company for the said reason, is unsustainable in law. It is to be held that the claim Tribunal has committed an error relying upon the contents of the FIR ignoring the statement of Ritesh Patidar PW-4 recorded in Court. Thus, it is' to be held that as per the averments of the claim petition and looking to the statement of Ritesh Patidar PW-4 when Kishor (deceased) standing on the bank of the field along with Zahid received injuries from the offending vehicle tractor and due to its overturned, succumbed to death. In such circumstance, in absence of violation of the terms and conditions policy and driver having valid driving licence, the Insurance Company is liable to pay the amount of compensation jointly and severally with the owner and the driver. 13. On perusal of the record it is further seen that after filing the written statement by the Insurance Company and on the date of adducing the evidence i.e. 13-11-2009 the counsel representing the Insurance Company pleaded no instructions, however, the Court proceeded ex parte without taking recourse of issuance of the notice to the Insurance Company. On perusal of the order sheets of Tribunal, it is seen that on 30-11-2009, counsel representing respondent No. 3 was absent, and later on Mr. Ambar Barsi, Advocate appeared and pleaded no instructions. However, proceeding ex-parte, the Court has appointed a Commissioner to record the statement of the claimant's witnesses and to submit its report. The Commissioner after recording the statement has submitted the report which has taken on record and relying upon them, the Court has passed the award. Ambar Barsi, Advocate appeared and pleaded no instructions. However, proceeding ex-parte, the Court has appointed a Commissioner to record the statement of the claimant's witnesses and to submit its report. The Commissioner after recording the statement has submitted the report which has taken on record and relying upon them, the Court has passed the award. In this regard, it is suffice to observe that if the advocate pleads no instruction on behalf of the parties, who is not present on the said date then it is the duty of the Court to issue notice from the Court to the said party indicating the fact that the Advocate appearing on behalf of them has pleaded no instructions, however, they may appear in person or through some other advocate. Thus the claim Tribunal has committed error to proceed ex-parte against the Insurance Company and also of not afforded an opportunity of hearing to cross-examine on the claimant's witness and to adduce the evidence and decided the claim petition. Thus, in the considered opinion of this Court, the Insurance Company deserves an opportunity of cross-examination and to adduce their evidence to prove their defence. 14. In view of foregoing discussions, Misc. Appeal No. 841/2010 filed by the claimants seeking enhancement is hereby allowed in part and the enhancement of Rs. 2,32,000/- is directed in addition to the amount already awarded by the claim Tribunal. Misc Appeal No. 540/2010 filed by the owner and the driver is also allowed. The finding of exoneration of the Insurance Company stands set aside in view of the foregoing observations, but the Insurance Company is at liberty to cross-examine the claimant's witnesses and to adduce the evidence in his defence, if needed. 15. In view of the foregoing observations, the claim petition is remitted back for the purpose of affording opportunity to prove the defence by the Insurance Company and to cross-examine on the claimant's witnesses by recalling them in witness box. Parties present in the Court shall appear before the Tribunal on 20th March, 2013. The claim Tribunal shall decide the issue of liability afresh within a period of three months from the date of appearance in view of the foregoing observations. Parties present in the Court shall appear before the Tribunal on 20th March, 2013. The claim Tribunal shall decide the issue of liability afresh within a period of three months from the date of appearance in view of the foregoing observations. It is further directed that the amount so deposited by the owner and the driver shall be subject to the final outcome of the decision by the Tribunal on the issue of liability by the Tribunal. The cost imposed and litigation expenses of Insurance Company as awarded by the claim Tribunal stands set aside. The Registry of this Court shall transmit the record post haste with a view to reach on or before the date of appearance. In the facts and circumstances of the case, parties to bear their own cost. Order accordingly.