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2019 DIGILAW 435 (MAD)

ORIENTAL INSURANCE COMPANY LIMITED v. RANJITHAM

2019-02-13

J.NISHA BANU

body2019
JUDGMENT : 1. The present appeal has been filed by the appellant questioning the liability. 2. It is the case of the respondents 1 to 3/claimants that on 31.08.2008 about 05.45 p.m., while the deceased Ramaraj was travelling as a loadman in a Tractor bearing registration No. TN-65- E-4338 belonging to the 4th respondent herein insured with the appellant, from Jeyamangalam to Sinthuvampatti village, at Kullappuram Vilakku on Jeyamangalam-Sinthuvampatti main road, the driver of the Tractor drove the same in a rash and negligent manner with a high speed through the ditches in the road, due to which, the said Ramaraj was thrown out from the Tractor and sustained injuries. Immediately, he was rushed to the Government Medical College Hospital at Theni, where he declared dead. Parents and sister of the deceased claimed compensation of Rs. 10,00,000/-. The appellant insurance company filed counter contending that the deceased did not travel in the Tractor as loadman and at Kullappuram Vilakku, he stopped the Tractor and requested the Tractor driver to lift him at Sinthuvampatty and therefore, the insurance company is not liable to pay compensation for the death of a person who travelled in the Tractor as gratuitous passenger. Considering the oral and documentary evidence, the Tribunal held that the accident had occurred due to the rash and negligent driving of the driver of the Tractor and that the deceased travelled in the Tractor as loadman and accordingly awarded compensation of Rs. 4,42,000/- with 7.5% interest per annum. Against the said award, the insurance company has filed this appeal challenging its liability. 3. Learned counsel for the appellant would submit that the deceased travelled in the mudguard of the Tractor as gratuitous passenger and he would rely on various judgments filed in the typed set of papers to state that there are judgments to the effect that for a person travelled in the mudguard of the Tractor, the insurance company is not liable to pay the compensation and recover the same from the owner of the vehicle. 4. Heard both sides. 5. The only issue to be decided in this appeal is whether the insurance company can be directed to pay and recover the compensation amount or the owner of the Tractor alone should be directed to pay the compensation. 6. 4. Heard both sides. 5. The only issue to be decided in this appeal is whether the insurance company can be directed to pay and recover the compensation amount or the owner of the Tractor alone should be directed to pay the compensation. 6. Perusal of record shows that while it is the case of the claimants that the deceased travelled in the Tractor as loadman, the appellant would rebute the same by stating that the deceased travelled only as gratuitous passenger. Therefore, it has to be decided whether the deceased at the time of accident travelled as loadman or not. On the side of the claimants, mother of the deceased examined herself as PW1; eye witness was examined as PW2 and father of the deceased examined himself as PW3. Both PWs 1 and 3 have stated that the deceased was a loadman at the time of accident and was earning Rs. 5,000/- and PW2 also would state that the deceased Ramaraj earned Rs. 150/- to Rs. 200/- per day by working as a loadman in the Tractor. Though the appellant contended that PW3 father of the deceased lodged Ex.P1-FIR stating that his son/deceased studied +2 and he is in home without having any job, but contrary to the same, he has deposed in his version before the Tribunal that his son was working as loadman and therefore, the evidence of the claimants that the deceased was a loadman, cannot be relied on, during cross examination, PW3 has denied the suggestion of the appellant that for the purpose of the case, he falsely states that his son was a loadman. It is well settled that FIR is not an encyclopedia. It can be relied on, for the purpose of setting the criminal law in motion, and all that is stated in the FIR, cannot be said to be the facts admitted, and if there is any omission in the FIR to state any fact, it does not mean that evidence cannot be adduced, either at the time of investigation, by the Police, for laying a charge against the accused or pleaded in the claim petitions, when compensation is claimed. 7. 7. Perusal of record shows that though the appellant cross examined PWs 1 to 3 extensively, no word was snatched from the mouth of the claimants side witnesses to prove their case that the deceased was not a loadman at the time of accident. Whereas, the claimants side witnesses categorically denied the suggestion of the appellant that the deceased was not a loadman. Though RW1- Assistant working in the appellant company, stated that the deceased was not a loadman, his evidence is not supported by any other witness nor documents. On the contra, the evidence of the claimants is duly supported by PW2-eye witness and the documents adduced on their side. Further, perusal of Ex.R1-insurance policy of the Tractor also shows that this policy is extended to cover risks of IMT29-IMT29-LL To employees. Therefore, it cannot be said that there is no coverage for the loadman in the Tractor at the time of accident and hence, the insurance company is liable to pay compensation for the death of the deceased Ramaraj who travelled as loadman in the Tractor. Hence, this Court is not inclined to interfere with the finding of the Tribunal. The judgments relied on by the appellant are not applicable to the present case. 8. The appellant insurance company is directed to deposit the entire award amount with interest and costs as awarded by the Tribunal, to the credit of the claim petition within a period of eight weeks from the date of receipt of a copy of this judgment. On such deposit, the respondents 1 to 3/claimants are permitted to withdraw their respective shares with proportionate interest without filing any formal permission petition before the Tribunal. 9. Accordingly, this Civil Miscellaneous Appeal is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.