1. By way of this appeal, the appellants- original opponents have challenged the judgement and award dated 09.06.1997, passed by the Motor Accident Claims Tribunal, Bhavnagar, in M.A.C.P. No.192 of 1997, whereby the Tribunal has awarded compensation in the sum of Rs.4,68,000/- to the claimants alongwith interest at the rate of 15% per annum from the date of filing of the application till its realization.
2. The short facts as emerging from the record are that on 18th September, 1996 one Ishwarbhai P. Sonagara, was going to village Senthali to meet his religious leader(Dharamguru) in a tempo. He alighted from the vehicle at village Senthali and was standing just in front of the gate of Senthali Gram Panchayat. At that time one Matador bearing registration No.GJ-7T-2343 came and dashed the Ishwarbhai P. Sonagara. As a result of the said accident, Ishwarbhai P. Sonagar, sustained grievous injuries and subsequently, he died.
2.1. Therefore, the legal heirs of the deceased filed claim petition being M.A.C.P. No.192 of 1997 before the Tribunal for compensation. The Tribunal, by impugned judgment and award, partly allowed the claim petition and awarded compensation to the claimants as stated hereinabove, against which, the present appeal is filed by the appellants-original opponents.
3. Learned counsel for the appellants has contended that the vehicle i.e. Max bearing registration No.GJ-1-2370 was referred in the FIR, but in the claim petition the number of the said vehicle was not mentioned. He further contended that the Tribunal has completed the proceedings of the claim petition within a period of 2 months and 22 days and allowed the claim petition. He further contended that though in paragraph No.1 and 2, of the written statement, the appellant- Insurance Company has contented that the vehicle No. GJ-7T- 2343, was not involved in the accident, the Tribunal held that the vehicle No. GJ-7T- 2343 was involved in the accident and held that the Insurance Company is liable to make payment of compensation.
4. In support of his contention, he relied upon the decision of the Apex Court, in the case of Oriental Insurance Co. Ltd. Vs. Premlata Shukla and Others, reported in 2007,ACJ 1928, wherein it is held that the Tribunal can rely upon the FIR irrespective of the fact that the contents of the documents have been proved or not.
5. Learned counsel for the respondents has raised first contention regarding non-involvement of the vehicle No. GJ-7T-2343 before this Court, which has not been raised before the Tribunal. In support of his contention he relied upon the decision of the Apex Court passed in Civil appeal No.5881 of 2008, dt. 26th September, 2008, wherein the Apex Court has observed that in case of a contention which has not been raised before the Tribunal, the High Court was justified in refusing to go into such contentions. He also relied upon the decision of the Apex Court in the case of Mohd. Akram Ansari Vs. Chief Election Officer and Ors, reported in 2008 AIR SCW 416.
6. The second contention of learned advocate for the respondents is that the Tribunal has decided the claim petition within a period of 2 months and 22 days, but the same cannot be a ground for appeal before this Court. He further contended that once, the chargesheet is filed, the same may be concluded.
7. In support of his contention he relied upon the decision of this Court, in the case of United India Insurance Co. Ltd. Vs. Moghiben Wd/o Baldevbhai Devabhai Bharvad and Ors, reported in 2009(4) GLR, 2881. He further relied upon the decision of the Apex Court in the case of The State of Bombay Vs. Rusy Mistry and another, reported in AIR 1960 SC, 391. The relevant portion of paragraph Nos. 7 and 8 of the aforesaid judgement reads as under:-
The first information report is the information recorded under S. 154. It is an information given to a police officer relating to the Commission of an offence. It is also an information given by an informant on which the investigation is commenced. It must be distinguished from information received after the commencement investigate on which is covered by Ss. 161 and 162. The first information report is not substantive evidence, but can only be vused to corroborate or contradict the evidence of the information given in court or to impeach his credit. It follows that a judge cannot place such a report before the jury as substantive evidence, but can only referee to that portion of it which had been used for one or other of the aforesaid purposes. Where a document is not a first information report, not being the first complaint by the informant made to the police, it is hit by Sc. 161 and 162, and the judge should not have relied upon it except to the extent permitted by the proviso to S.
162 I.e. to contradict the informant with reference to any particular statement therein.”
8. The third contention of learned counsel for the respondent is that the acquittal of the driver of the offending vehicle cannot have any consequence in case of a claim petition, in view of the decision of the Apex Court in the case of Vijay Kumar Kulhar Vs. Rajasthan State Road Transport Corporation.
9. I have heard learned counsel appearing for the respective parties. As regards the first contention of non-involvement of the vehicle No. GJ- 7T-2343 is concerned, the same has not been raised before the Tribunal. However, from plain reading of written statement filed by the Insurance Company before the Tribunal, it is clear from para- 1 and 2, that the contention regarding non- involvement of the vehicle No.GJ-7T-2324 has been raised by the Insurance Company before the Tribunal. From the FIR it is also established that vehicle No. GJ-1-2370 was involved in the accident and even independent witness before the Criminal court has reported that vehicle No.2370 was involved in the said accident. The wife of the deceased has also stated that her husband had died in an accident involving Max vehicle. However, the involvement of the vehicle No. GJ-7T-2324 was not mentioned in FIR or at any other place. Apart from that nothing has been produced on record to show that the vehicle in question was involved. In my opinion this is a case where subsequently number of the vehicle was changed, only with a view to getting the compensation from the Insurance Company.
10. In that view of the matter, the Tribunal has committed an error in holding that the vehicle No. GJ-7T-2324 was involved in the said accident. As regards the chargesheet is concerned, the Tribunal has acquitted the driver and no evidence has come on record even in the FIR that the vehicle No. GJ-7T- 2324 is involved and no independent witness has been examined to establish that the vehicle No. 2343 was involved in the accident.
11. The third contention of learned advocate for the respondent is that the acquittal of the driver of the offending vehicle will not give him benefit of doubt in the claim petition. However, in my opinion, the case on hand is a fraud case, where the number of the vehicle involved in the accident is subsequently changed, therefore, there is no question of giving any benefit of doubt.
12. In that view of the matter, it is difficult to believe that that vehicle No.2343 was involved in the accident in question. It is required to be noted that the FIR was lodged after eight hours and 45 minutes of the accident. Therefore, it will not be appropriate to hold that original claimants were not knowing that the number of offending vehicle. Consequently, the contention raised by the appellants is required to be accepted that the vehicle No.2334 is not involved in the accident.
13. For the foregoing reasons, the present appeal is allowed. The impugned judgment and award passed by the Tribunal is quashed only qua the extent of imposition of liability on the appellant- Insurance Company to make payment of compensation. The amount deposited by the appellant – insurance company, if lying in the FDRs, shall be refunded to the insurance company and it will be open for the claimants to recover the said amount from the owner of the vehicle. However, if the amount is already withdrawn by the claimants, the insurance company is at liberty to recover the same from the owner of the vehicle and not from the claimants.
[K.S.JHAVERI,J.] pawan