: These 3 appeals arise out of the common judgment and award dated 1/7/2005 rendered by the M.A.C. Tribunal [Main], Surendranagar [hereinafter referred to as 'the Tribunal'] in M.A.C. Petition No. 96/1996 and other allied matters. The First Appeal No. 45/2006 arises out of the common judgment and award rendered in M.A.C. Petition No. 358/1996, First Appeal No. 47/2006 arises out of the common judgment and award rendered in M.A.C. Petition No. 190/1996 and First Appeal No. 49/2006 arises out of the common judgment and award rendered in M.A.C. Petition No. 97/1996.
2. It further transpires that in-all 8 claim petitions came to be filed before the Tribunal by different claimants claiming compensation amount on account of vehicular accident which occurred on 18/12/1995 at 9.30 AM on the road between villages Godavari and Limbli of Muli Taluka. In the vehicular accident, some of the persons who were traveling in Matador No. GJ-1-U-6727 sustained bodily injuries as well as some of them succumbed to the injuries. It further transpires that the appellant in these 3 appeals was original respondent no. 3 – New India Assurance Co. Ltd., the insurer of the vehicle involved in the accident and the appellant had filed appeals in connection with the common judgment and award rendered in all the claim petitions, but barring these 3 appeals, other appeals came to be disposed of on the ground of smallness of amount.
3. So far as these 3 appeals are concerned, as seen above, they arise out of the common judgment and award rendered in M.A.C. Petition Nos. 97, 190 and 358 of 1996. The concerned respondents are the original claimants, who claimed compensation on account of death of their family members who died in the accident. Before the Tribunal, all the claim petitions were consolidated and common evidence was recorded in M.A.C. Petition No. 96/1996. The Tribunal examined the claimants, so also considered the documentary evidence produced on record and after considering the oral and documentary evidence on record, so far as these 3 appeals are concerned, in M.A.C. Petition No. 97/1996 the Tribunal awarded, by way of compensation, Rs.2,39,000/- together with proportionate costs and interest @ 9% p.a., in M.A.C. Petition No. 190/1996 the Tribunal awarded, by way of compensation, Rs.1,93,000/- together with proportionate costs and interest @ 9% p.a., and in M.A.C. Petition No. 358/1996 the Tribunal awarded, by way of compensation, Rs.2,03,000/- together with proportionate costs and interest @ 9% p.a., from the date of said petitions till the realization. The Tribunal came to the conclusion that the vehicular accident by the driver occurred on account of his sheer rash and negligent driving.
The Tribunal then considered the income, age and other relevant factors of deceased persons, who were traveling in the vehicle and awarded aforementioned compensation in those 3 claim petitions, as stated above.
4. Mr. Thakkar, Ld. Advocate for the appellant – original opponent no. 3 New India Assurance Co., at the outset, submitted that the impugned judgment and award rendered by the Tribunal is contrary to law and facts on record. It is submitted that even as per the case of the claimants, about 14 persons were traveling in the matador vehicle which was admittedly a goods carriage vehicle defined under section 2 [14] of the Motor Vehicles Act [hereinafter referred to as 'the Act']. It is further submitted that
matter of fact, any evidence adduced by the claimants without there being any specific pleading cannot be considered. It is further submitted that considering the FIR, nowhere it has been stated that the persons who were traveling in the goods carriage vehicle were traveling along with their goods or that they paid any freight charges to the driver or owner of the vehicle. My attention was drawn to the panchnama of the scene of occurrence and it is submitted that in the panchnama nowhere it has been stated that any goods were loaded in the vehicle. My attention was drawn to the depositions of the claimants and it is submitted that though in their examination-in-chief, the claimants tried to justify their traveling or traveling by the deceased that they were traveling in capacity as owners of the goods, but if the cross-examination is considered, it clearly transpires that what they claimed was utter mis-statement as not only they could justify the exact articles with which they were traveling, but no cogent evidence was adduced in connection with alleged articles.
5. Mr. Thakkar, Ld. Advocate for the appellant Insurance Company relied upon the decision rendered in the case of National Insurance Co. Ltd. v/s. Cholleti Bharatamma reported in [2008] 1 SCC 423 and more particularly the discussion made by Hon'ble the Apex Court in paras. 19 and 20 in the said decision and it was submitted that Hon'ble the Apex Court, in clear terms, held that the owner of the goods means only the person who travels in the cabin of the vehicle. In the instant case, admittedly the persons injured as well as died were not traveling in the cabin of the matador, but were traveling sitting on the body portion of the matador. The decision rendered in the case of National Insurance Company Ltd. v/s. Rattani reported in [2009] 2 SCC 75 was relied upon and more particularly reliance was placed upon the discussion made in paras. 11 to 15 and it is submitted that in the instant matter, perusing the FIR, nowhere it transpires that the injured as well as deceased were traveling in the vehicle in capacity as owners of their goods. Reliance was also placed upon the decision rendered in the case of Shankar Chakravati v/s. Britania Biscuit Co. Ltd. Reported in AIR 1979 S.C. 1652 and more particularly the observations made by Hon'ble the Apex Court in para. 31 in the said decision and it is submitted that in the instant matter, not only the claimant is required to prove that he was traveling in the goods carriage in capacity as owner of the goods, but there must be clear pleadings to that effect in the claim petition.
6. Mr. Thakkar, Ld. Advocate for the appellant Insurance Company took me through the impugned common judgment and award rendered by the Tribunal and submitted that in the written statement filed by the appellant – opponent no. 3 Insurance Company, it was specifically contended that all the injured as well as the deceased were traveling in capacity as mere passengers in the goods carriage vehicle and, therefore, there was breach of essential condition of the policy and the Insurance Company was not liable to satisfy the award. It is submitted that despite this and despite the fact that while discussing the
the Tribunal. It is, therefore, submitted that in such circumstances, the impugned common judgment and award deserves to be set aside and the matters are required to be remanded to the Tribunal to consider this contention raised by the Insurance Company and then to render a fresh common judgment and award or in the alternative considering the evidence on record, even this appellate Court can come to the conclusion that the Insurance Company was not liable to satisfy the award. It is, therefore, submitted that the appeals may be allowed.
7. M/s. Dave and Dholakia, Ld. Advocates for the respondents original claimants, at the outset, supported the impugned common judgment and award rendered by the Tribunal. They submitted that considering the claim petitions filed by the respondents – claimants, it has been clearly pleaded that the deceased was traveling in the vehicle in capacity as owner of the goods. It is, therefore, submitted that here is not a case wherein the claimants adduced evidence without any pleadings. My attention was drawn to the relevant oral evidence adduced by the concerned claimants and submitted that it has been established by the claimants that not only the deceased but even the injured were traveling in capacity as owners of the goods and freight charges were also paid for the same. So far as the FIR is concerned, Mr. Dave, Ld. Advocate for the respondents – claimants, submitted that the purpose for informing the police was about the offence being committed by the driver of the vehicle and so far as the aspect as to whether the passengers or the deceased were traveling as owners of the goods or not cannot be said to be the part of pleadings required in the FIR. Coming to the panchnama of the scene of occurrence, Mr. Dave, Ld. Advocate for the respondents – claimants, submitted that the panchnama came to be drawn between 8.00 pm and 8.30 pm and thus the panchnama came to be drawn after about 10 to 12 hours from the time of the occurrence. It is further submitted that the panchnama was made pursuant to the FIR disclosing criminal offence and thus the purpose of the panchnama was to ascertain as to whether the criminal offence can be said to have been committed or not. Mr. Dave, Ld. Advocate for the respondents – claimants, therefore, submitted that the Tribunal has rightly not touched this point as the claimants specifically established their case. It is further submitted that considering the fact that the claim petitions were of the year 1996 and on such technical ground, there is no reason to remand these matters to the Tribunal only for the purpose of re-writing of judgment, but even considering the evidence on record, the perusal of which would reveal that the Tribunal was justified in partly allowing the concerned claim petitions.
8. I have taken into consideration the record and proceedings in context with the submissions advanced by both the sides.
9. There is no dispute that if the Tribunal comes to the conclusion that injured and the deceased were traveling in the goods carriage vehicle in capacity as mere passengers, considering section 147 of the Act, the Insurance Company cannot be made liable to indemnify the owner of the vehicle. It is further required to be considered that in such claim petitions, the police papers are produced only with a view to show that a vehicular accident had occurred and the accident occurred because of the rash and negligent driving. Needless to say that such police papers are not produced to come to the conclusion as to whether any offence was committed or not. In other words, so far as such claim petitions are concerned, the evidence, which both the parties are supposed to adduce, shall be in the nature of preponderance of probabilities. Neither the claimant is required to prove his case beyond any reasonable doubt nor the opponent is obliged to prove its defence beyond reasonable doubt. The evidence is to be judged on the basis of preponderance of probabilities.
10. Seen in the above context, first of all considering the pleadings and more particularly the claim petitions filed in connection with the aforementioned 3 claim petitions, it transpires that the respective claimants pleaded in their claim petitions that deceased were traveling in capacity as owners of the goods. Under such circumstances, it cannot be said that there is complete absence of pleadings about this fact. I have taken into consideration the evidence of Vijuben Prabhubhai in connection with M.A.C. Petition No. 358/1996, Valjibhai Govabhai in connection with M.A.C. Petition No. 97/1996 and the evidence of Laxman Dharabhai in connection with M.A.C. Petition No. 190/1996. Admittedly, at the time of accident, they were not present. However, upon their information and knowledge, they deposed that their deceased family members were traveling along with their goods. I have taken into consideration the evidence of injured claimants who were not only present at the time of the accident, but they sustained injuries on account of the accident. In their examination-in- chief, they stated that they were traveling along with their goods. It is true that in their cross- examination when they were asked as to from where those goods were purchased, etc., they could not provide exact evidence. However, they denied the suggestion to the effect that they were traveling in capacity as mere passengers. It is further pertinent to note that on behalf of the opponents, no oral evidence was adduced.
11. The bare perusal of the impugned common judgment and award rendered by the Tribunal would suggest that though the Tribunal, while discussing the pleadings of the parties, did take into consideration that one of the grounds raised by the appellant original opponent no. 3 Insurance Company was to the effect that the deceased as well as the injured were traveling in capacity as mere passengers in the goods carriage vehicle. However, in the impugned common judgment and award, nowhere it transpires that the said contention raised by the Insurance Company came to be dealt with and discussed by the Tribunal. However, in such situation, a general presumption which may arise, would be that during the course of arguments, the Insurance Company might not have pressed this point, but Mr. Thakkar, Ld. Advocate for the appellant Insurance Company, upon instructions, submitted that such point was pressed. Be that as it may. The only question, therefore, arises as to whether on such ground, by setting aside the common judgment and award rendered by the Tribunal, whether matters are required to be remanded to the Tribunal to re-hear the arguments and to re-write the judgment and award, discussing and dealing with said contention raised by the Insurance Company or that considering the fact that the accident occurred in the year 1995 and the claim petitions are of the year 1996, on the basis of available oral and documentary evidence on record, this Court should undertake said exercise or not.
12. As stated above, it is true that in the FIR, it is nowhere stated that the injured as well as deceased were traveling in the capacity as owners of the goods, but it has been considered that the evidence in the claim petition adduced in the form of the FIR or other police papers is required to be seen in the context with this litigation. However, if in the FIR, it transpires that the injured and the deceased were traveling in capacity as mere passengers or in capacity as members of marriage party as was the case before Hon'ble the Apex Court in Rattani's case [supra], then such recitals in the FIR assumes importance. In Rattani's case [supra] it clearly emerged from the FIR that several persons were traveling in the goods vehicle in capacity as members of a marriage party. In that view of the matter, Hon'ble the Apex Court observed that such fact emerges from the FIR cannot be lost sight of. In Cholleti Bharatamma's case [supra] relied upon on behalf of the appellant, it is true that Hon'ble the Apex Court observed that owner of the goods means only the person who travels in the cabin of the vehicle. However, it is further required to be considered that in the said matter, the admitted plea of the claimant was that the deceased had boarded the lorry and paid amount of Rs.20/- as transport charges and it was not proved that the deceased was traveling in the truck along with the driver or the cleaner as the owner of the goods. In the aforesaid factual background, it was observed that traveling with goods does not entitle to anyone to protection under section 147 of the Act. There cannot be any dispute regarding proposition of propounded by Hon'ble the Apex Court, but in the instant matter on hand, as submitted above, considering the oral evidence adduced by the claimants, applying the test of preponderance of probabilities, it can safely be said that the deceased were traveling in the matador vehicle in capacity as owner of their goods and they had paid freight charges for the same. Considering the ratio laid down by Hon'ble the Apex Court in Shankar Chakravarti's case [supra], there cannot be any dispute that any evidence without pleadings is not required to be considered, but suffice it to say that in the instant case, no such situation has arisen as the respective claimants pleaded such fact in their claim petitions.
13. In above view of the matter, this Court is of the opinion that the matter is not required to be remanded to the Tribunal on such technical ground that the Tribunal did not deal with the aforementioned contention raised by the appellant Insurance Company, as considering the oral and documentary evidence on record, it can safely be said that the claimants have proved their case. When such is the situation, undertaking the aforementioned exercise by this Court, this Court is of the opinion that applying the test of preponderance of probabilities, if the oral and documentary evidence adduced on record before the Tribunal is considered, the claimants proved that the deceased were traveling in the vehicle in capacity as owners of the goods and the freight charges for the goods were paid.
15. For the foregoing reasons, the appeals stand dismissed. Considering the facts and circumstances of the case, there shall be no order as to costs.
(J.C.UPADHYAYA, J.) * Pansala.