Madhya Pradesh High Court
Nanhu Singh vs Jaheer And Ors. on 9 November, 2004
Equivalent citations: 2006ACJ803
Author: Dipak Misra
Bench: Dipak Misra, U.C. Maheshwari
JUDGMENT Dipak Misra, J.
1. In this appeal preferred under Section 173 of Motor Vehicles Act, 1988 (in short 'the Act'), claimant has called in question the legal acceptability of the award dated 12.8.1999 passed by the Additional Motor Accidents Claims Tribunal, Maihar, District Satna in Claim Case No. 7 of 1995 whereby the Claims Tribunal has absolved the insurance company and fastened the liability of payment of compensation on the owner, solely on the ground that, the person who lodged the F.I.R. before the investigation agency, PW 2, had stated that the petitioner claimant was travelling in a truck bearing registration No. UP 32-A 6597 and whereas in his statement in court, he has stated that he was standing on the roadside, where the truck hit him. As there was a discrepancy in the statement, claimant can be treated as a passenger and, therefore, the claimant is not entitled to get any compensation from the insurance company.
2. It is not disputed before this court that the accident had occurred; that the claimant has sustained injury; and that the claimant has been awarded a sum of Rs. 40,000 towards the compensation keeping in view the 45 per cent permanent disability and that the owner has been made liable to pay the compensation, the core question that arises for consideration is whether the Tribunal while dealing with issue No. 6(b), namely, whether there has been breach of policy has returned the finding correctly. Learned counsel for the appellant has drawn our attention to para 5 of the award passed by the Tribunal wherein the Tribunal has laid emphasis on the factum that there was discrepancy in the statement made by PW 2 in the court and the F.I.R. and the F.I.R. being initial report should be given credence. Being of this view, the Tribunal had arrived at the conclusion that the claimant was travelling as a passenger in the truck and hence, he was not covered by the insurance policy.
3. Mr. Anil Lala, learned Counsel has submitted that the Tribunal has grossly erred by placing reliance on the F.I.R. In the said F.I.R., it was categorically stated that the claimant was standing on the roadside when the truck travelled from that place and injured him. That apart, submission of Mr. Lala is that PW 2 remained unshaken and that the accident had taken place when the claimant was standing on the roadside.
4. The seminal issue that arises for consideration is whether the Tribunal rightly recorded the conclusion on the basis of the version of the F.I.R. which was lodged to set the criminal law in motion or should have given credence to the testimony of the witnesses which were recorded before him as the Motor Accidents Claims Tribunal. The learned Counsel for the appellant has commended us to a Division Bench decision rendered in the case of Dhanwanti v. Kulwant Singh . In the aforesaid case almost in similar circumstances in paras 10 and 11, this court had expressed the view as under:
(10) Coming to the other contention that the deceased was travelling as a passenger and, therefore, the insurance company was not liable to pay any compensation, it has also no merit. True, the F.I.R., Exh. D/2C and the statement of the Investigating Officer gives a version which supports the case of the insurance company, but even assuming that the F.I.R. is a public document, it is the rule of law that it is not a substantive piece of evidence. It can be used only for purposes of corroboration or contradiction of the maker only. The maker having not been examined by either side, statement of A.S. Yadav carries no weight as he only investigated the occurrence. He is not an eyewitness to the occurrence. His testimony is of hearsay evidence, therefore, the conclusions which he had drawn after the investigation cannot be taken into consideration unless supported by proper material. It is a well settled proposition of law that evidence recorded in criminal court and the findings arrived at thereon should not be used in the claim cases. Such evidence, for the purposes of claim cases is inadmissible. See Shabbir Ahmed v. M.P.S.R.T.C., Bhopal 1984 ACJ 525 (MP).
(11) The fact that the deceased, at the time of accident, was travelling on the trolley or was going as a pedestrian, playing dhapli has to be judged on the evidence adduced before the Tribunal which is not only proved by the claimants, but is admitted by the driver himself. It is not the case of the insurance company that the owner/driver have colluded with the claimants so as to get the compensation from the insurance company. Even if, for argument's sake it is assumed that the driver has stated so to save the owner and himself from liability, there is material on record that the finding arrived at by the Tribunal by rightly not taking into consideration the F.I.R. and the statement of the Investigating Officer as no eyewitness to the occurrence was examined and no other independent legal and cogent evidence was produced to support the plea of insurance company, the interference in appeal in the finding recorded by the Tribunal is not warranted. Accordingly, the cross-objections have no merit and are dismissed.
5. In the case of Laxmi Gontiya v. Nand Lal Tahalramani 1999 ACJ 241 (MP), another Division Bench had expressed the opinion that it is well settled law that the evidence recorded in criminal case and finding recorded thereon should not be used in claim cases.
6. In view of the aforesaid, we arrive at the irresistible conclusion that the finding recorded by the Tribunal on the basis of F.I.R. is incorrect, unsound and in a way paves the path of vitiation. The Tribunal had erred by relying on the F.I.R. as if it was the gospel truth or to put it differently, as if it was comparable to Einsteinean theory. In view of the aforesaid, we are not disposed to concur with the aforesaid finding and accordingly dislodge the same.
7. The next aspect that arises for our consideration is whether the amount of compensation awarded is justified. Mr. Anil Lala, learned Counsel for the appellant submitted that the appellant suffered 45 per cent permanent disability, therefore, the grant of Rs. 40,000 is unjust and inadequate. Mr. Nair has not disputed the fact that the claimant had availed the treatment and the permanent disability that has been adjudicated cannot be questioned.
8. In view of the aforesaid, we are inclined to think the amount of compensation has to be enhanced. It is acceptable that the permanent disability had occurred on the left shoulder. Dr. S.K. Jain, PW 3, who examined the claimant has opined that the claimant had suffered paralysis on the left side of the body due to injury on the left shoulder.
9. Keeping in view the facts and circumstances of the case, we are disposed to think that the amount of compensation of Rs. 40,000 should be enhanced to Rs. 90,000. Accordingly, amount of compensation is enhanced. The entire amount shall be paid by the insurance company. The enhanced compensation shall carry interest at the rate of 9 per cent per annum. The amount, which has already been paid by the insurance company earlier shall be deducted. At this juncture, Mr. Lala, learned Counsel has submitted that the interest component may be fixed by composite sum by this court so that the conflict would be avoided. Mr. Nair did not oppose the said proposal. Accordingly, we think appropriate that the interest amount should be Rs. 5,000. Both the parties agreed to the same. The balance amount of compensation including quantified interest shall be deposited before the Tribunal within three months from the date of receipt of the order passed today.
10. The appeal is allowed to the extent indicated above. There shall be no order as to costs.
C.C. as per rules.