Karnataka High Court
United India Insurane Company Ltd. ... vs Salauddin Abdulkhadar Maniyar And ... on 25 February, 2008
Equivalent citations: 2008 (4) AIR KANT HCR 75, 2008 A I H C 2765, (2009) 2 TAC 701, (2009) 4 TAC 213, (2009) 3 ACC 283, (2009) 1 ACJ 524
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
JUDGMENT Ram Mohan Reddy, J.
1. Though this appeal and cross-objection are listed for admission, with the consent of the learned Counsel for the parties, they are finally heard and are disposed of by this common order.
2. The insurer of the offending vehicle, aggrieved by the fastening of the liability to pay the compensation by the judgment and award dated 30-07-2005 in M.V.C. No. 1385/2002 of the III Addl. Civil Judge (Sr.Dn) & Addl. MACT, Belgaum (for short 'MACT'), has preferred this appeal while the cross-objection is preferred by the claimant-injured, the 1st respondent for enhancement of compensation.
3. The challenge to the impugned judgment and award by the insurer of the offending motor vehicle is grounded on non-liability to pay the compensation as the claimant-injured is a gratuitous passenger travelling in a goods carriage, while the cross objection is over the quantum of compensation as inadequate. In that view of the matter, applying the law laid down by the Division Bench of this Court in the case of United India Insurance Co. v. Balasubramanyam holding that the provisions of Order 41 Rule 22 when read in conjunction with Section 110-D of the Motor Vehicles Act, ('Act' for short), the combined effect of which in an appeal presented by the insurer in which the only ground of challenge is with reference to the extent of liability of the Insurance company, the cross-objector cannot be permitted to contest the quantum of compensation or the findings recorded on any other issue, the cross-objection in the instant case is not maintainable and deserves to be rejected.
4. The grievance of the appellant as aired by its learned Counsel is that the claimant-injured having travelled in a goods carriage along with the driver, not as the owner of the goods, hut as a gratuitous passenger, the decision of the Apex Court in New India Assurance Co. Ltd. v. Vedwati and Ors. , that no liability could be clamped on the insurer of the offending vehicle in the circumstances is applicable.
5. Learned Counsel highlights the fact that the claimant-injured in the claim statement, against Column No. 5, except for stating that he was a cootie, did not furnish the employment particulars nor state that he was employed by the owner of the vehicle and that the claimant-injured in his statement as recorded by the police authorities, while in the hospital, in the course of investigation into the crime, disclosed that he was travelling in the goods carriage as a gratuitous passenger, in addition to the statement of the complainant that the claimant-injured boarded the goods carriage, sat in the cleaner's seat as a gratuitous passenger. According to the Learned Counsel, these facts having not been considered by the MACT, has occasioned denial of justice.
6. Per contra, the learned Counsel for the respondent-claimant, seeks to sustain the finding of the MACT fastening liability on the appellant, as being well merited, and not calling for interference.
6. Having heard the learned Counsel for the parties, examined the impugned judgment and award, the pleadings, certified copies of the depositions and documents exhibited before the MACT and produced by the learned Counsel for the appellant, what emanates is the fact that in the claim statement filed by the claimant-injured, although he claimed to be a coolie by avocation, did not furnish the relevant material particulars of employment, much less employed under the insured. Before the MACT the appellant produced three documents marked as Exhibits R-1 to R-3 namely the statement of the claimant-injured, the complaint and a copy of the insurance policy, respectively. The statement of the claimant discloses that while in hospital, the police authorities in the process of investigation into the crime, recorded the claimant's statement wherein he categorically stated that he was travelling as a gratuitous passenger. So also, the written complaint Exhibit R-2, lodged by one Malleshappa also travelling in the goods carriage at the time of accident and injury, the basis for the F.I.R. discloses the fact that the claimant-injured was travelling as a gratuitous passenger along with others. These documents, indisputably were material on record before the MACT.
8. The impugned judgment and award does not disclose consideration of these relevant materials and in that view of the matter, the learned Counsel is correct in his submission that the non-consideration of the said materials has occasioned denial of justice. Though a mint effort was made by the learned Counsel for the respondent-claimant that the said statements would not be admissible in evidence, that submission is without force. I say so because, a Division Bench of this Court in the case of Savitribai and Anr. v. Doddappa and Anr. 1981 ACJ 422, framed the following two questions:
a) Whether the statement made by a witness in a criminal case during investigation could be used in a civil proceeding for any purpose?
b) Whether an admission made by a concerned person in his statement before the police can be relied upon as substantive evidence?
9. The Division Bench, having regard to Section 162 of the Criminal Procedure Code, Sections 17, 21 and 145 of the Indian Evidence Act, answered both the questions in the affirmative, following the law laid down by the Apex Court in Bharat Singh and Ors. v. Mst. Bhagirathi 1981 ACJ 422, the Division Bench held that an admission becomes a piece of substantive evidence against the person who makes it, under Sections 17 and 21 of the Indian Evidence Act and that it is not even necessary for the person relying on it to confront the said admission to the witness who made it.
10. In the instant case, as noticed supra, the statement of the claimant-injured before the police, the complaint by Matteshappa, another occupant of the goods carriage at the tune of accident, leading to the filing of the F.I.R., the charge-sheet coupled with the non furnishing of the relevant particulars and employment details of the claimant-injured in the claim statement, raises a serious doubt over the appellant's claim that he was a coolie engaged by the insured while travelling in the goods carriage at the time of accident and injury.
11. In the light of the clear admission of the claimant-injured as noticed in Exhibit R-1 that he was a gratuitous passenger travelling in the goods carriage at the time of accident and injury and this clear admission being decisive and not explained in any way by the claimant-injured in his evidence, there is no hesitation to disbelieve that the claimant-injured was travelling as a coolie engaged by the insured, in the goods carriage in question at the time of accident and injury. The MACT, in my considered opinion, fell in error in not considering the relevant material while recording a finding of fact that the claimant-injured was a coolie engaged by the insured in respect of whom the insurer had indemnified the insured against claims. The fastening of the liability on the appellant to pay the compensation cannot therefore but be illegal and unsustainable.
12. The law as regards fastening of liability on the insurer to pay compensation for injuries/death caused to passenger of goods carriage is well-settled. The Act does not provide for carrying of passengers in a goods carriage meant for carrying goods and that the owner of such a goods carriage will not be entitled to statutory indemnity against the claim by the injured - gratuitous passengers. In fact, the Act does not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability thereto. This is the statement of law as declared by the Apex Court hi Vedwati's case supra. Thus, the MACT was not justified in fastening the liability on the appellant to pay the compensation.
13. In the result, this appeal is allowed. The impugned judgment and award in so far as it relates to fastening of liability on the appellant to pay the compensation is set-aside. It is needless to state that the claimant-injured is entitled to recover the compensation from the insured, the owner of the goods carriage. The Registry is directed to refund the amount in deposit to the appellant.
14. Accordingly, the Cross Appeal stands dismissed.