Himachal Pradesh High Court
Reliance General Insurance Co. Ltd vs Reeta Devi & Others on 25 November, 2022
Author: Satyen Vaidya
Bench: Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO No. 211 of 2015
Reserved on: 14.11.2022
.
Date of decision : 25.11.2022.
Reliance General Insurance Co. Ltd. ...Appellant
Versus
Reeta Devi & others ...Respondents
Coram:
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?1
For the appellant : Mr. Jagdish Thakur, Advocate.
For the respondents : Mr. V. S. Chauhan, Sr. Advocate
with Mr. Ajay Kashyap, Advocate,
for respondents No. 1 to 4.
Mr. Sarthak Mehta, Advocate, for
respondents No. 5 and 6.
Satyen Vaidya, Judge:
By way of instant appeal, appellant/insurer has assailed the award dated 25.8.2014, passed by learned Motor Accident Claims Tribunal (III), Shimla, H.P.(for short "the Tribunal") in MAC petition RBT No. 148-S/2 of 2012/10 on the grounds, firstly that deceased Roshan Lal, on account of whose death, compensation was claimed, was sitting in the Goods Carriage 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 25/11/2022 20:32:49 :::CIS -2-Vehicle as gratuitous passenger and secondly in alternative, in absence of any proof of his income on record, the daily wage as .
per the Government notification, issued by the Labour Department during the relevant period was liable to be considered.
2. Brief facts necessary for adjudication of appeal are that on 13.3.2010 at about 7.00 PM, vehicle (Bolero Pickup) No. HP-08A-0462 met with an accident. Respondent No.6 herein was the driver of the said vehicle. The vehicle was owned by respondent No.5 herein. Two persons namely Roshan Lal and Liak Ram were occupants in the vehicle besides the driver. Sh.
Roshan Lal died as a result of injuries suffered by him on account of the aforesaid accident. Respondents No. 1 to 4 herein/claimants were the legal representatives of late Sh.
Roshan Lal.
3. The claim petition was filed under Section 166 of the Motor Vehicles Act (for short "the Act") by the claimants for grant of compensation on account of death of Sh. Roshan Lal.
It was alleged that the vehicle was being driven by the driver in rash and negligent manner, which caused the accident. Sh.
Roshan Lal was claimed as occupant of the vehicle in the ::: Downloaded on - 25/11/2022 20:32:49 :::CIS -3- capacity of owner of goods. It was averred that deceased was carrying sand in the vehicle.
.
4. The owner and driver of the vehicle filed their reply to the claim petition. It was submitted by them that deceased was sitting in the vehicle as owner of goods. The insurer separately contested the petition on various grounds including breach of terms and conditions of policy, deceased being gratuitous passenger in the vehicle etc.
5. Learned Tribunal framed the following issues:-
"i) Whether deceased Roshan Lal had died in a motor vehicle accident on 13.03.2010 due to rash and negligent driving of respondent No.2?
OPP.
ii) If issue No.1 is proved in affirmative to what amount of compensation petitioners are entitled to? OPP.
iii) Whether respondent No.3 can be held liable to indemnify the owner?OPR-2.
iv) Whether the driver was not having valid driving licence at the time of accident? OPR-3.
v) Whether the vehicle in question was driving in breach of terms and conditions of insurance policy? OPR-3.
vi) Whether deceased was travelling as a gratuitous passenger in the vehicle at the time of accident? OPR-3.
vii) Relief."::: Downloaded on - 25/11/2022 20:32:49 :::CIS -4-
Issues No. 1 to 3 were decided in affirmative and remaining issues were decided in negative. The claim petition .
was allowed and a sum of Rs. 11,96,520/- was awarded in favour of claimants with interest at the rate of 7.5% per annum from the date of filing of the claim petition. The liability to pay the compensation amount was fastened upon the insurer.
6. I have heard learned counsel for the parties and have also gone through the record carefully.
7. It is not in dispute that the vehicle No. HP-08A-
0462, "Bolero Camper" was a Goods Carriage Vehicle. The question arises whether the deceased person Shri Roshan Lal was travelling in the vehicle as owners of goods.
8. Section 147 of the Act reads as under:-
"147 Requirements of policies and limits of liability. --
(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which--
(a) is issued by a person who is an authorised insurer; and
(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)--
(i) against any liability which may be incurred by him in respect of the death of or ::: Downloaded on - 25/11/2022 20:32:49 :::CIS -5- bodily [injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any .
property of a third party caused by or arising out of the use of the vehicle in a public place;
(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:
Provided that a policy shall not be required--
(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee--
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or
(c) if it is a goods carriage, being carried in the vehicle, or
(ii) to cover any contractual liability."
9. A three Judges Bench of Hon'ble Supreme Court, in New India Assurance Company Limited vs. Asha Rani, ::: Downloaded on - 25/11/2022 20:32:49 :::CIS -6- reported in 2003 (2) SCC 223, has held that meaning of the words "any person" in Section 147 of the Act would relate only .
to a third party and thus, the Act does not enjoin any statutory liability on the owner of a vehicle to keep his vehicle insured for any passenger travelling in a goods vehicle. In absence of any contract to the contrary, the insurer would not be liable to indemnify the insured for any compensation payable in respect of death or bodily injury to the passenger travelling in a goods vehicle. The effect of the 1994 Amendment came up for consideration in National Insurance Co. Ltd. v. Baljit Kaur (2004) 2 SCC 1 wherein Supreme Court following Asha Rani opined that the words "injury to any person" would only mean a third party and not a passenger travelling on a goods carriage whether gratuitous or otherwise. The question came up for consideration again in National Insurance Co. Ltd. v. Bommithi Subbhayamma (2005) 12 SCC 243 wherein upon taking into consideration a large number of decisions, the said view was reiterated.
10. The only exception is that the statutory liability of insurer under Section 147, covers the owner of the goods or his authorized representative, carried in the vehicle. The goods carried in a Goods Carriage Vehicle will also necessarily mean the hiring of such vehicle.
::: Downloaded on - 25/11/2022 20:32:49 :::CIS -7-11. The policy of insurance whereby the vehicle in question was insured on the date of accident has been proved .
on record as Ext. RW-2/A. Its perusal reveals that the insured paid basic premium towards risk on own damage, basic liability, compulsory personal cover for owner and driver and LLP paid driver (IMT 40) for two persons.
12. Deceased Roshan Lal was not a third party being an occupant of the Goods Carriage Vehicle. The insurer would be liable to indemnify insured in respect of compensation payable on account of death of Sh. Roshan Lal, if he was proved to be the owner of goods carried in the vehicle or if the contract of insurance permitted otherwise.
13. As noticed above, as a matter of fact, the claimants had specifically pleaded that the deceased Sh. Roshan Lal was occupying the vehicle at the time of accident as owner of goods as he was carrying sand in the said vehicle. The question that arises for determination is whether the factum of deceased Sh.
Roshan Lal occupying the vehicle at the time of accident as owner of goods was proved?
14. Issue No.6 was specifically framed regarding status of deceased in the vehicle. Learned Tribunal has held that the statement of RW-3 HC Om Prakash, relied upon by the insurer ::: Downloaded on - 25/11/2022 20:32:49 :::CIS -8- was of no help, as this witness had not deposed on the basis of material in case file. Learned Tribunal further drew .
presumption that the entire sand must have fallen down immediately, when the vehicle rolled down from the road and thus necessarily, the same would not be available at the spot where the vehicle was lying. It was further observed that the insurer had not raised a plea of collusion between the claimants on one hand and the owner and driver on the other.
Thus, it has been held that the insurer had failed to discharge the onus of proving issue No.6.
15. Once the parties have led evidence, onus becomes redundant. The issues involved in legal proceedings are to be decided on the basis of appreciation of material on record that is available in the shape of legal evidence.
16. In the given facts of the case, the claimants themselves had relied upon the contents of FIR Ext. PW-1/B. PW-1 Smt. Reeta Devi wife of deceased Roshan Lal had tendered the document in her examination-in-chief. The FIR was recorded on the complaint of Sh. Liak Ram, who was another occupant of the vehicle at the time of accident. He had stated that on 13.3.2010, he along with Roshan Lal were travelling in Bolero Pickup No. HP-08A-0462. There is nothing ::: Downloaded on - 25/11/2022 20:32:49 :::CIS -9- in the FIR to suggest that the aforesaid vehicle was carrying sand at the time of accident or the sand belonged to deceased .
Roshan Lal. Though the FIR is not substantive evidence on facts stated therein by itself. However, when a party to litigation relies upon the contents of FIR, it cannot subsequently turn around to show that the contents thereof were not correct. In 2009 (2) ACJ 925, National Insurance Co. Ltd. vs Rattani & others, the Hon'ble Supreme Court has observed as under:-
"7. We are not oblivious of the fact that ordinarily an allegation made in the first information would not be admissible in evidence per se but as the allegation made in the first information report had been made a part of the claim petition, there is no doubt whatsoever that the Tribunal and consequently the appellate courts would be entitled to look into the same.
13. The question as to whether burden of proof has been discharged by a party to the lis or not would depend upon the facts and circumstances of the case. If the facts are admitted or, if otherwise, sufficient materials have been brought on record so as to enable a court to arrive at a definite conclusion, it is idle to contend that the party on whom the burden of proof lay would still be liable to produce direct evidence to establish that the deceased and the injured passengers were gratuitous passengers.::: Downloaded on - 25/11/2022 20:32:49 :::CIS -10-
As indicated hereinbefore, the First Information Report as such may or may not be taken into consideration for the purpose of arriving at a finding .
in regard to the question raised by the appellant herein, but, when the First Information Report itself has been made a part of the claim petition, there cannot be any doubt whatsoever that the same can be looked into for the aforementioned purpose."
Similarly, in Oriental Insurance Company vs. Premlata Shukla & others, reported in 2007 (13) SCC 476, the Hon'ble Supreme Court has held as under:
"12. In Narbada Devi (supra) whereupon reliance has been placed, this Court held that contents of a document are not automatically proved only because the same is marked as an Exhibit. There is no dispute with regard to the said legal proposition.
13. However, the factum of an accident could also be proved from the First Information Report. It is also to be noted that once a part of the contents of the document is admitted in evidence, the party bringing the same on record cannot be permitted to turn round and contend that the other contents contained in the rest part thereof had not been proved. Both the parties have relied thereupon. It was marked as an Exhibit as both the parties intended to rely upon them.
14. Once a part of it is relied upon by both the parties, the learned Tribunal cannot be said to have committed any illegality in relying upon the other ::: Downloaded on - 25/11/2022 20:32:49 :::CIS -11- part, irrespective of the contents of the document been proved or not. If the contents have been proved, the question of reliance thereupon only upon a part .
thereof and not upon the rest, on the technical ground that the same had not been proved in accordance with law, would not arise.
15. A party objecting to the admissibility of a document must raise its objection at the appropriate time. If the objection is not raised and the document is allowed to be marked and that too at the instance of a party which had proved the same and wherefor consent of the other party has been obtained, the former in our opinion cannot be permitted to turn round and raise a contention that the contents of the documents had not been proved and, thus, should not be relied upon. In Hukam Singh (supra), the law was correctly been laid down by the Punjab and Haryana High Court stating;
"8. Mr. G.C. Mittal, learned counsel for the respondent contended that Ram Partap had produced only his former deposition and gave no evidence in Court which could be considered by the Additional District Judge. I am afraid there is no merit in this contention. The Trial Court had discussed the evidence of Ram Partap in the light of the report Exhibit D.1 produced by him. The Additional District Judge, while hearing the appeal could have commented on that evidence and held it to be inadmissible if law so permitted. But he did not ::: Downloaded on - 25/11/2022 20:32:49 :::CIS -12- at all have this evidence before his mind. It was not a case of inadmissible evidence either. No doubt the procedure adopted by the trial Court .
in letting in a certified copy of the previous deposition of Ram Partap made in the criminal proceedings and allowing the same to be proved by Ram Partap himself was not correct and he should have been examined again in regard to all that he had stated earlier in the statement the parties in order to save time did not object to the previous deposition being proved by Ram Partap himself who was only cross-examined. It is not a case where irrelevant evidence had been let in with the consent of the parties but the only objection is that the procedure followed in the matter of giving evidence in Court was not correct. When the parties themselves have allowed certain statements to be placed on the record as a part of their evidence, it is not open to them to urge later either in the same Court or in a court of appeal that the evidence produced was inadmissible. To allow them to do so would indeed be permitting them both to appropriate and reprobate."
17. The owner and driver in their joint reply have specifically admitted that deceased Roshan Lal was travelling in the vehicle as owner of goods. The owner of the vehicle Sh.
::: Downloaded on - 25/11/2022 20:32:49 :::CIS -13-Suresh Kumar appeared as RW-2 and stated that the sand was loaded in the vehicle at the time of accident and deceased .
Roshan Lal had hired his vehicle for the said purpose. In cross-
examination by insurer, it was suggested to this witness that nothing was lying on the spot, he volunteered that sand was scattered there. Admittedly RW-2 was not in the vehicle at the time of accident. He has also not stated that he had visited the spot after the accident. The best person to vouch for true facts was the driver of the vehicle, but he was not examined. The statement of RW-2 is to be taken with a pinch of salt for the simple reason that for avoiding the liability to pay compensation, he had every reason to make an incorrect statement. In absence of the examination of the driver, adverse inference is liable to be drawn against their stand.
18. None of the witnesses examined on behalf of the claimants were the eye witnesses. In any case, they had every interest in showing the success of the case of claimants and for obvious reason that the imposition of liability on insurer would make recovery of compensation easy for them.
19. RW-3 was Investigating Officer of the case. He was examined as witness by insurer. This witness had categorically stated that he had visited the site of accident on the next day ::: Downloaded on - 25/11/2022 20:32:49 :::CIS -14- and had found no sand scattered on the spot. He has been disbelieved only on the ground that he was not deposing on the .
basis of records, which in my considered opinion is a view wrongly taken by the learned Tribunal. The statement made by Investigating Officer was itself substantive evidence. There was nothing on record to suggest that RW-3 had not visited the spot as stated by him. Merely, because he has deposed after four years does not mean that he would not remember the factual position. In any case, if the insured or the claimants intended to confront this witness with respect to anything contrary in the records of investigation, they had every opportunity to do so.
20. Additionally, it can be seen that no details were provided by the insured regarding hiring of the vehicle by deceased Roshan Lal. Nothing was stated that what was the tariff and in what manner it was paid. It has also not been shown on record that from where the sand was procured or purchased by the deceased. Sand is not a commodity that the deceased could have collected from anywhere. Clearly in the case, the best evidence was not produced either by the claimants or by the insurer. As noticed above, the statement of RW-3 could not be brushed aside especially keeping in view other evidence on record.
::: Downloaded on - 25/11/2022 20:32:49 :::CIS -15-21. Learned counsel for respondents No. 5 and 6 Mr. Sarthak Mehta has placed reliance on extract contained in para .
21 of the judgment passed by Hon'ble Supreme Court in Anita Sharma v. New India Assurance Co. Ltd (2021) 1 SCC 171,
21. Equally, we are concerned over the failure of the High Court to be cognizant of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eyewitnesses, as may happen in a criminal trial; but, instead should be only to analyse the material placed on record by the parties to ascertain whether the claimant's version is more likely than not true.
22. The aforesaid dictum will not help the cause of insured keeping in view the specific facts and circumstances of the case. It is not that an issue is being decided only by drawing adverse inference for non-examination of a witness;
entire available material has been considered at the touchstone of preponderance of probabilities.
23. In light of above discussion, it is held that the deceased Roshan Lal was travelling in the vehicle at the time of ::: Downloaded on - 25/11/2022 20:32:49 :::CIS -16- accident as gratuitous passenger and thus the appellant insurance company would not be liable to pay the .
compensation by indemnifying the insured.
24. In view of the fact that the insurer has been held to be not liable to pay the compensation, there is no need to delve upon the second contention of the insurer regarding the income of the deceased assessed by learned Tribunal.
25. Learned counsel for the claimants contended in the last that the insurer should be made liable to pay the compensation to the claimants in the first instance and thereafter it may recover the same from insured. Reliance has been placed on judgments in Manuara Khatun Vs Rajesh Kumar Singh (2017) 4 SCC 796 and Anu Bhanvara Vs IFFCO TOKIO General Insurance Co. (2020) 20 SCC 632. The contention so raised merits rejection for the reason; firstly that there is no provision in the Act which allows the insurer to pay in the first instance and recover later from the insured where the claim relates to gratuitous passenger in a Goods Carriage Vehicle and secondly in view of the law settled in New India Insurance Company Ltd. vs. Asha Rani, 2003 ACJ (1), National Insurance Co. vs. Baljeet Kaur, 2004 ACJ 428.
Both these judgments by three judges benches expounded the ::: Downloaded on - 25/11/2022 20:32:49 :::CIS -17- law with respect to liability of insurer to indemnify the insured in respect of claims arising out of death or bodily injury to a .
gratuitous passenger in a Goods carriage Vehicle and held in favour of insurer. The judgments cited by learned counsel for claimants do not lay down law with regard to principle of "pay and recover' in so far as liability arises in respect of gratuitous passenger in a Goods Carriage Vehicle as the question as such was not before the Hon'ble Supreme Court for consideration.
Those are the judgments on their own facts. Even the larger bench of Hon'ble Supreme Court in National Insurance Company ltd. Vs Parvathneni in (2018) 9 SCC 657 has kept the question of law open on the issue whether the Supreme Court in exercise of powers under Article 142 of the Constitution can direct the insurer to pay and recover, where the liability otherwise does not arise in case of gratuitous passenger. This court while expressing above view has drawn support from judgment passed by a Division Bench of High Court of Judicature at Madras in Bharti AXA General Insurance Co. Ltd. Vs Aandi reported in 2019 ACJ 1975.
26. In result, the appeal is partly allowed and the award dated 25.8.2014, passed by learned Motor Accident Claims Tribunal (III), Shimla, H.P., in MAC petition RBT No. 148-S/2 of ::: Downloaded on - 25/11/2022 20:32:49 :::CIS -18- 2012/10 is modified to the above extent and the insurer is exonerated from liability to pay compensation to the claimants.
.
The appeal is accordingly disposed of. All pending miscellaneous application(s), if any, also stand disposed of.
Records be sent back forthwith.
(Satyen Vaidya)
25th November, 2022 Judge
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