1. Both these appeals arise out of the same vehicular accident and involve common questions on law and facts. Hence, they are disposed of by this common judgment.
2. In connection with the vehicular accident that took place on 08.07.1992 in which Chimanbhai Chaturbhai Parmar expired, respondents no.1 to 4 herein, original applicants, had preferred claim petition being M.A.C.P. No.1637 of 1992 before the Motor Accident Claims Tribunal (A-I), Kheda at Nadiad u/s.166 of the Motor Vehicles Act claiming total compensation of Rs.4.00 Lacs. The said claim petition was allowed in part, by judgment and award dated 19.02.2005, whereby, the claimants were awarded total compensation of Rs.1,82,800/- along with interest at the rate of 9% per annum from the date of application till its realization with proportionate costs.
3. Being aggrieved by the award, original opponent no.3-Insurance Company has preferred F.A. No.1095/2005 and the owner of the offending vehicle, original opponent no.2 [since deceased, through his heirs and legal representatives] preferred F.A. No.2442/2005.
4. It is submitted on behalf of the appellant-Insurance Company that the Tribunal seriously erred in holding the Insurance Company liable since the deceased was travelling as a gratuitous passenger in the Tractor, which is a vehicle classified as 'goods vehicle' under the Motor Vehicles Act. It is contended that therefore, there was clear breach of Regulation 28 of Rules of the Road Regulations, 1989. The said Rule is reproduced hereunder for ready reference;
"28. Driving of tractors and goods vehicles. - A driver when driving a tractor shall not carry or allow any person to be carried on tractor. A driver of goods carriage shall not carry in the driver's cabin more number of persons than that is mentioned in the registration certificate and shall not carry passengers for hire or reward."
4.1 It is further contended that in the FIR lodged by the driver of the vehicle, it has been specifically averred that the deceased fell down from the Tractor and subsequently, the Tractor ran over him. The FIR has been admitted by the other side and has been exhibited. Therefore, it is now not open to the owner of the vehicle to contend that the said averments in the FIR are denied.
In support of the above submission, reliance has been place on the decision of the Apex Court in the case of Oriental Insurance Company Ltd. v. Premlata Shukla and others, (2007) 13 SCC 476. wherein, it has been held that if objection is not raised and the document is allowed to be marked, one 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.
5. The appellant-owner of the offending vehicle mainly contended that the Tribunal seriously erred in giving more emphasis to the contents of the FIR. It is submitted that in the claim petition, it was averred that the deceased was walking on the road-side and was dashed by the Tractor whereas, in the FIR, it was averred that he was travelling in the Tractor. It is submitted that the driver-complainant has also been acquitted by the competent criminal Court from the alleged offence. Therefore, the Tribunal ought not to have place reliance upon the FIR in question. Reliance has been placed on a decision of this Court in the case of United India Insurance Co. Ltd. v. Ravjibhai Karsanbhai Rathod, 2004 (1) GLH 578.
6. Heard learned counsel for the respective parties. In the FIR lodged by the driver of the offending vehicle, it has been categorically averred that the deceased was travelling in the Tractor at the relevant point of time. It is true that in the claim petition, it was averred that the Tractor dashed the deceased while the deceased was walking on the road-side. At this stage, it would be pertinent to rely upon the decision rendered in the case of Premlata Shukla (supra) wherein, it has been held that if objection is not raised and the document is allowed to be marked, one 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 this case, the FIR has been exhibited. Therefore, if the owner had any objection regarding its contents, then objection should have been raised at that time. Once the document is exhibited in evidence, it is not open to either party to raise a contention that its contents had not been proved at a later stage. In view of the same, it has to be accepted that the deceased was travelling in the Tractor at the relevant point of time.
7. Once it is concluded that the deceased was travelling in a Tractor, then the Insurance Company could not be made liable to satisfy the claim in view of Regulation 28 since the vehicle in question was a 'goods vehicle'. Hence, the Tribunal ought to have exonerated the Insurance Company from the liability of satisfying the claim.
8. For the foregoing reasons;
[A] F.A. No. 1095/2005 is allowed.
The impugned judgment and award passed by the Tribunal is quashed and set aside only qua the extent of imposition of liability upon the appellant-Insurance Company to satisfy the award. It is, however, observed that if the amount deposited before the Tribunal is already withdrawn by the original claimants, the same shall not be recovered from the original claimants but, the appellant-Insurance Company shall be at liberty to recover the same from the owner of the offending vehicle. But, if the amount has not been withdrawn by the original claimants, the same shall be refunded to the Insurance Company and the claimants shall be at liberty to recover the balance amount from the owner of the offending vehicle. The appeal stands disposed of accordingly. No order as to costs.
[B] F.A. No.2442/2005 is dismissed.
No order as to costs.
[K.
S. JHAVERI, J.] Pravin/* Top