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2023 DIGILAW 30 (JK)

United India Insurance Co. Ltd. v. Chander Mohan

2023-02-08

SANJAY DHAR

body2023
JUDGMENT : Sanjay Dhar, J. 1. The appellant-insurance company has challenged award dated 24.05.2018 passed by the Motor Accidents Claims Tribunal, Udhampur, whereby an amount of Rs. 5,84,880/- along with interest at the rate of 7% per annum has been awarded in favour of respondent No. 1/claimant (hereinafter to be referred as claimant) payable by the appellant/insurance company. 2. The claim petition that was fled before the learned Tribunal arose out of a road traffic accident that took place on 13.06.2010 at Dodi Nallah National Highway and the vehicle involved was a petrol tanker bearing registration No. JK-02R-4997. As a result of the accident which is stated to have been caused, due to rash and negligent driving of respondent No. 3/Driver, two occupants of the vehicle are stated to have died whereas two more occupants including the claimant are stated to have received grievous injuries. 3. The claimant is stated to have received permanent disability of 30% and his functional disability has been taken by the learned Tribunal as 20%. As per the case of the claimant, he was driver by profession and at the time of the accident, he was standing on the road side. 4. The case of the appellant/insurance company before the learned Tribunal was that the claimant was travelling as a gratuitous passenger in the petrol tanker and as such, risk to his life was not covered under the terms of the policy of the insurance. It was submitted by the appellant before the learned Tribunal that as per Police challan, the claimant was travelling in the offending vehicle and he was not a pedestrian as has been claimed by him. The learned Tribunal, after appreciating the evidence led by the parties, came to the conclusion that the claimant was standing on the road side at the relevant time, as such, risk to his life was covered in terms of the policy of the insurance. Accordingly, a sum of Rs. 5,84,880/- was awarded by the learned Tribunal and the same was directed to be satisfied by the appellant/insurance company. 5. The appellant/insurance company has challenged the impugned award primarily on the ground that risk to the life of claimant was not covered because he was travelling as a gratuitous passenger in the offending vehicle at the time of the accident, which is substantiated by the police investigation. 5. The appellant/insurance company has challenged the impugned award primarily on the ground that risk to the life of claimant was not covered because he was travelling as a gratuitous passenger in the offending vehicle at the time of the accident, which is substantiated by the police investigation. It has also been contended that the amount awarded under the head of medical expenses is on higher side because the doctor, who has been examined as a witness by the claimant before the learned Tribunal has not stated anything about the bills produced on record by the claimant. 6. Heard learned counsel for the parties and perused the record. 7. Before proceeding to deal with the contentions raised by the learned counsel for the appellant, it is pertinent to mention here that respondent Nos. 2 and 3, i.e. the owner and the driver of the offending vehicle, have been set ex-parte as they have not responded to the summons issued by this Court. 8. Coming to the first contention raised by the learned counsel for the appellant-insurance company, there appears to be some merit in the said contention. If we have a look at the charge sheet, a copy whereof has been placed on record by the claimant before the learned Tribunal, it is revealed that the claimant was travelling in the offending tanker at the time of the accident. The case of the claimant before the learned Tribunal was that he was standing on the road side at the relevant time and even in the statement before the learned Tribunal, he has stuck to the same stand. Learned Tribunal believing the said statement of the claimant discarded the version given in the challan and has held that the claimant was a pedestrian and not an occupant of the offending tanker. 9. It is a settled law that a party, who produces a document and relies upon its contents cannot turn around and disown a part of the said document and adopt the other contents of the document, which are beneficial to its case. The Supreme Court in Oriental Insurance Co. 9. It is a settled law that a party, who produces a document and relies upon its contents cannot turn around and disown a part of the said document and adopt the other contents of the document, which are beneficial to its case. The Supreme Court in Oriental Insurance Co. Ltd. vs. Premlata Shukla and Others, 2007 (5) Supreme 370 , has categorically held that once a part of contents of documents is admitted in evidence, party bringing same on record cannot be permitted to turn around and contend that other contents contained in rest part thereof had not been proved. To the similar effect is the judgment of this Court in case of United India Insurance Co. vs. Amina Begum and Others, 2011 (4) JKJ 240 . The facts of the instant case are similar to the Amina Begum's case (supra). In that case, the stand of the claimant was that she was standing on the road side at the time of the accident whereas the investigation report i.e. charge sheet produced by her, before the learned Tribunal revealed that she was travelling as a gratuitous passenger in the offending vehicle. This Court, while dealing with contention of the claimant, noticed the facts of the said case and observed as under: “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 travelling with other ten people, also prosecution witnesses, in the offending vehicle at the time of accident. The outcome of the 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 travelling 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. 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 travelling 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. vs. Premlata Shukla and Others, National Insurance Co. Ltd vs. Ratani and Others, New India Insurance Co. vs. Raj Kumar and Others appear not 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.” 10. From the foregoing analysis of law and the subject, it is clear that once a party produces a document and places relies upon it, it cannot make selective use of the said document by relying on a part of it and discarding the other part which is not favourable to it. 11. In the instant case, as already noted, the claimant has relied upon the charge sheet to prove that the accident was caused due to rash and negligent driving of respondent No. 3, driver and to prove that he has suffered injuries due to the accident. 11. In the instant case, as already noted, the claimant has relied upon the charge sheet to prove that the accident was caused due to rash and negligent driving of respondent No. 3, driver and to prove that he has suffered injuries due to the accident. He cannot discard the part of the charge sheet wherein it has been stated that the claimant was travelling as a passenger in the offending vehicle. The finding of the learned Tribunal, whereby the stand of the claimant has been upheld is, therefore, not in accordance with law. The same, therefore, deserves to be set aside. 12. Once it is held that claimant was travelling as a gratuitous passenger in the offending tanker, it becomes obvious that risk to his life was not covered under the terms and conditions of the policy of insurance. Therefore, appellant-insurance company is not liable to pay compensation to the claimant. 13. The other ground urged by the learned counsel for the appellant/insurance company is that the bills produced by the claimant before the learned Tribunal have not been proved by the statement of the doctor and as such, compensation on account of medical expenses could not have been awarded in favour of the claimant. 14. Upon going through the record of the Tribunal, it comes to fore that the claimant has produced original computerized bills relating to the medicines stated to have consumed by him doing his treatment. It is not the case of the appellant-insurance company that the medicines prescribed in the bills could not have been used for the kind of ailment with which the claimant was suffering. The fact of the mater remains that the claimant has sufrered serious injuries due to the accident and he has remained admitted in the hospital for a prety long time. Record further shows that the claimant was even put on ventilator for a pretty long time and his condition was critical. 15. Having regard to the nature of the injuries suffered by the claimant and keeping in view the period during which he has remained under treatment, amount of medical expenses awarded by the learned Tribunal in favour of the claimant does not appear to be exaggerated, particularly when the same is supported by the prescription of the doctors and computerized original bills. So, merely because these bills have not been put to the doctor while recording his statement, does not disentitle the claimant from award of medical expenses. The argument of learned counsel for the appellant is, therefore, without any merit. 16. Having held that there has been violation of policy of insurance and the appellant/insurance company is not liable to pay compensation to the claimant, the question would arise as to who should be asked to satisfy the award in the first instance. According to the learned counsel for the appellant once it is shown that the risk for the life of the claimant is not covered under the terms of the policy, the insurance company cannot be asked to satisfy the award and recover the same from the owner/driver of the offending vehicle. 17. In the above context, it has to be noted that in the instant case, the owner and the driver of the offending tanker did not appear before the learned Tribunal and even in this appeal, their presence before the Court could not be procured. In these circumstances, it will be almost impossible for the claimant, who has already suffered much due to the accident to run after the owner and driver of the offending vehicle to recover the awarded sum. In these special circumstances, it is directed that the awarded sum shall be payable by the appellant/insurance company to the claimant in the first instance with a right to recover the same from the owner and the driver, who shall be liable jointly and severally. 18. The appeal stands disposed of in above terms. 19. The amount of award, if deposited in the Registry, be released in favour of the claimant along with interest in terms of the award.