IN THE HIGH COURT OF JUDICATURE AT HYDERABD FOR THE STATE OF TELANGANA AND STATE OF ANDHRA PRADESH MONDAY THE FIRST DAY OF DECEMBER TWO THOUSAND AND FOURTEEN PRESENT HONOURABLE SRI JUSTICE B. CHANDRA KUMAR MACMA.NO.2197 OF 2005.
Between:
Komurthy Hussainappa … Appellant/Respondent No.1 V/s.
Samala Venkata Reddy & Anr. … Respondents/Claimant Counsel for the Appellant : Sri D.Kodanda Rami Reddy Counsel for the Respondents : Sri M.V.Raja Ram The court made the following : [judgment follows] HONOURABLE SRI JUSTICE B. CHANDRA KUMAR MACMA.NO. 2197 OF 2005 JUDGMENT :
This Civil Miscellaneous Appeal is filed challenging the award and decree dated 06/1/2003 passed in OP.No. 93 of 1996 by the Motor Accidents Claims Tribunal-cum-Additional District Judge, Madanapalle, Chittoor district.
2. Brief facts of the case are as follows:
On 01/01/1996 at about 02:00 p.m. while the appellant-claimant and other coolies were proceeding towards Chakrayapet in the tractor bearing No.AP-03-8654 attached with trailor bearing No.AP-03-8654 for loading and unloading manure and when the said tractor and trailor reached at Payalopalle, it is alleged that the driver of the tractor drove it in a rash and negligent manner and on account of ditches on the road, the trailor of the tractor was detached and thereby the appellant and others who were sitting in the trailor fell down and received grievous injuries. The appellant/claimant was shifted to Government Hospital, Vempalle and both his legs were amputated to save his life. It is also his case that the claimant was also doing business and earning Rs.1500/- per month. The appellant/claimant claimed a total compensation of Rs.3,00,000=00.
3. The first respondent owner of the tractor and trailor filed a counter denied the nature of injuries, period of treatment, income of the claimant etc. However, the first respondent categorically stated that the claimant was engaged as cooli for the purpose of loading and unloading manure in the tractor.
4. The Insurance Company filed a counter denying the averments of the claimant with regard to the age, occupation, income, nature of injuries and claim of sustaining disability by the claimant. The Insurance Company further contended that the claimant was not a cooli and therefore, it is not liable to pay any compensation.
5. On the basis of the above pleadings, the Claims Tribunal framed the following issues for trial :
1. Whether the petitioner sustained injuries in a motor accident to the tractor AP-03-8653 and trailor AP-03-8654 on 01/01/1996 at about 02:00 p.m. at Payalopalle turning on Vempalle-Lakkireddipalle road due to rash and negligent driving of the driver ?
2. Whether the petitioner is entitled for compensation, and if so, from whom and to what quantum ?
3. To what relief ?
6. As seen from the record, the Claims Tribunal passed the award holding that Insurance Company is not liable and the owner of the tractor alone is liable to pay under section 140 of the Motor Vehicles Act. Then the owner of the vehicle filed an appeal, CMA.No.154 of 1998 and this Court by order dated 04/04/2002 came to conclusion that Insurance Company is liable to pay compensation. This Court relying on the decision of Supreme Court in NEW INDIA ASSURANCE COMPANY V/s. SATPAL SINGH AND OTHERS disposed of the said appeal.
7. Before the Claims Tribunal, the claimant himself was examined as PW-1 and Exs.A-1 to A-5 were marked. On behalf of second respondent, the Assistant Administrative Officer was examined as RW-1 and Exs.B-1 and B-2 were marked. The Claims Tribunal while referring to the recitals made in the FIR came to the conclusion that tractor was engaged for proceeding to Gandi village to have darshan in Anjaneyaswamy temple and therefore the contention of the claimant that he was proceeding as cooli is not correct. The Claims Tribunal further came to conclusion that the claimant was an unauthorised passenger in the tractor and he is not entitled for compensation and that the decision of NEW INDIA ASSURANCE COMPANY V/s. SATPAL SINGH AND OTHERS need not be followed in view of subsequent decisions of the Apex Court. Now the owner of the vehicle has filed this appeal. The Claims Tribunal assessed the compensation at Rs.1,20,000/-. However directed that the owner of the tractor alone to pay compensation and the Insurance Company has been exonerated.
8. The main contention of the appellant is that the Claims Tribunal failed to appreciate the evidence of PWs 1 and 2 and the findings of the Claims Tribunal is based on the recitals of FIR and the Tribunal ought not to have looked into the FIR since the contents of FIR are inadmissible in evidence.
9. Now it has to be seen that whether the findings of the Tribunal is based on proper appreciation of evidence in view of settled legal position.
10. In this case, the claimant himself was examined as PW-1. PW- 1 categorically deposed that on the date of accident he was engaged as cooli. His further case is that the accident occurred due to rash and negligent driving of the driver of tractor and it is also his case that when the tractor turned turtled he fell down and the trailor fell upon his legs causing injuries to both legs. It is also his case that his both legs were amputated in the hospital. He denied a suggestion that on the date of accident he was proceeding to Gandi village to have darshan in Anjaneyaswamy temple. Then on behalf of Insurance Company, RW-1 was examined. According to RW-1, he is working as Assistant Administrative Officer in Insurance company. His further case is that the tractor was insured for agricultural purpose, but on the date of accident it was used for non-agricultural purpose and therefore, the Insurance Company is not liable to pay any compensation. It is also clear that the Insurance Policy covers the risk of coolies. The owner of tractor is examined as RW-2. He deposed that on the date of accident the tractor was proceeding to Chakrayapet village for the purpose of transport of manure from Chakrayapet to his village. It is also his case that he engaged coolies and the claimant is one of the cooli among them. Thus, it is clear from the evidence that there is no other evidence to show that the tractor was engaged for the purpose of visiting the temple. The Insurance Company has not examined the driver of tractor and the Insurance Company has also not examined other person who was travelling in that tractor. Absolutely, there is no other oral evidence to show that tractor was being used for non-agricultural purpose. The Claims Tribunal has mainly relied on the contents of FIR. It is true that in the FIR it is mentioned that the tractor was proceeding to Gandhi village to visit Anjaneyaswamy temple. It appears that one B. Shivaiah gave report to the Police. Admittedly, the said Shivaiah was not examined before the Claims Tribunal. It is settled law that any statement made to the police is in admissible in evidence. The FIR or the statement recorded by the Police can be looked into only for the purpose of contradicting the version of the person, who has given statement or who lodged FIR before the Court. The Claims Tribunal committed a mistake in relying upon the contents of FIR without examining the person, who lodged complaint to the Police. Therefore, the findings of the Claims Tribunal have to be set aside. Accordingly, the findings of the Claims Tribunal is set aside. Admittedly the evidence on record clearly shows that the deceased was a cooli on the tractor, therefore, the Insurance Company is liable to pay compensation. Even other wise in this case, from the evidence, it is clear that the driver was driving the tractor in a rash and negligent manner and thereby the tractor and trailor turned turtled, the injured fell down on the ground then the trailor fell upon the injured cutting his legs. The moment he fell on the ground he became third party and then he cannot be treated as passenger in the vehicle. Therefore, the finding of the Claims Tribunal is set aside and the appeal is allowed holding the Insurance Company is liable to pay compensation.
11. As a sequel, miscellaneous petitions if any pending, in this appeal shall stand closed.
JUSTICE B. CHANDRA KUMAR .
01/12/2014
I s L
HONOURABLE SRI JUSTICE B. CHANDRA KUMAR MACMA.NO. 2197 OF 2005 Circulation No.181 Date: 01/12/2014 Court Master : I s L Computer No. 43