The Branch Manager, The Oriental Insurance Company Limited vs Mrs. Pinnavanam and Others

G. Rajasuria, J.—The Civil Miscellaneous Appeal and Cross Objection are focussed as against the Judgement and Decree dated

07.03.2005 passed in MCOP. No. 1204 of 1997 by the learned Motor Accidents Claims Tribunal cum the Chief Judicial Magistrate, Madurai.

Heard both sides.

A resume of facts absolutely necessary and germane for the disposal of this Civil Miscellaneous Appeal would run thus:

The Tribunal vide Judgement dated 07.03.2005 has awarded compensation to a tune of Rs. 1,80,000/- (Rupees one lakh and eighty thousand

only) under the head loss of income and nothing more.

The gist and kernel of the grounds of appeal as stood exposited from the records could be portrayed thus:

The Tribunal despite giving a finding that at the relevant time of the accident, the deceased was a passenger after paying a fare of Rs. 2/- to the

driver, fell into error in making the Insurance Company also liable to honour the award. It is a trite proposition of law that passenger in a goods

vehicle is not at all covered by the Insurance policy. Accordingly, the learned counsel for the appellant Insurance Company would pray for

exonerating the Insurance Company from the liability of paying the award amount.

The nitty-gritty of the grounds of appeal as found set out in the memorandum of cross objection would run thus:

The Tribunal committed error in giving a finding that the deceased was a passenger after paying a fare of Rs. 2/- to the driver. The averments in the

First Information Report cannot be taken for gospel truth and that too in view of the fact that the very de facto complainant in the First Information

Report himself clearly and categorically deposed before the Court that he was only a loadman travelling along with the load viz., tin sheets in that

offending vehicle.

The points for consideration are (i) whether the Tribunal was right in arriving at the conclusion that the deceased was a passenger in the goods

vehicle? and if so, whether the Tribunal was justified in mulcting the Insurance Company also jointly and severally to pay award amount?

On points:

Heard both sides in entirety.

Before the Tribunal, the de facto complainant in the First Information Report viz., Periyakaruppan was examined as PW2 and he quite

antithetical to his version in the First Information Report, deposed that the police obtained his signature without reading out the contents of the

complaint and that he was not the author of those averments in the First Information Report. According to him, the deceased and himself were

travelling as loadmen along with the load of tin sheets in the offending vehicle. Neither of the parties took steps to examine either the driver or the

police official, who recorded the version in the complaint as uttered out by PW2. As per the First Information Report, the driver would be the

pivotal figure for the reason that according to the de facto complainant in the First Information Report, it was he and the deceased, who gave Rs.

2/- each to the driver so as to enable them to travel as passengers in that vehicle. In such a case, if the driver is examined before the Tribunal and

subjected to cross examination, the truth will come out. But it was not done so. Furthermore, PW2 would simply pass serious allegations as against

the police official, who recorded the averments of PW2 and registered the First Information Report. In such a case, it is obvious that the Police

official also should have been examined and cross examined before the Tribunal. Then only, the truth would come out.

At this juncture, I would like to cite the decision of the Hon''ble Apex Court in Oriental Insurance Co. Ltd. v. Premlata Shukla and Ors.

reported in 2007 (3) T.A.C. 11 (S.C.). An excerpt from it would run thus:

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.

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

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.

It appears the Tribunal without taking these aspects seriously, simply gave a finding, I make it clear that after examination and cross

examination of those witnesses, the Tribunal may even come to the same conclusion or a different conclusion. But without adequate evidence, the

Tribunal had arrived at such a finding, which deserves interference.

In these circumstances, I am of the considered view that further evidence is absolutely necessary for which the award has to be set aside and

accordingly set aside the matter is remitted back to the Tribunal with the direction for taking further evidence in addition to the evidence already

available on record. The driver and the police official have to be examined and cross examined and there after on hearing both sides, the Tribunal

has to give a finding finally pass suitable award within a period of three months from the date of receipt of a copy of this order, as this is an old

matter. The parties are expected to furnish the name of the driver as well as the police official concerned for effective adjudication and those

witnesses shall be examined as Court witnesses and the parties are at liberty to cross-examine such witnesses.

The learned counsel for the respondent Nos. 1 to 5 claimants would make an extempore submission to the effect that ever since the year

1995, the claimants are reeling in penury and they are in impecunious circumstances and their condition may be ameliorated by permitting them to

take the entire 50% of the award amount deposited by the sixth respondent. Hence, in these circumstances, the respondent Nos. 1,4 and

5/claimant Nos. 1, 4 and 5 are permitted to withdraw 50% of their share in the entire award amount from the amount deposited with interest and

costs and the minor claimants (Claimants 2 and 3) are permitted to withdraw only the interest alone in M.C.O.P. No. 1204 of 1997 on the file of

the Motor Accidents Claims Tribunal cum Chief Judicial Magistrate, Madurai. In case ultimately the Insurance Company is made liable then the

owner would be able to get reimbursed from the Insurance Company. On the other hand, if the owner of the vehicle alone is made liable, then

there would be no legal loss to the owner.

With the above observations, the Civil Miscellaneous Appeal is allowed and the Judgment and decree dated 07.03.2005 passed in MCOP.

No. 1204 of 1997 by the learned Motor Accidents Claims Tribunal cum the Chief Judicial Magistrate, Madurai is set aside and the matter is

remitted back to the Tribunal for the aforesaid purpose set out supra. Within three months from the date of receipt of a copy of this order, the

Tribunal shall complete the task and pronounce the Judgment. No costs. In view of the remittance of the matter to the Tribunal, the Cross

Objection stands ordered accordingly. Consequently, connected Miscellaneous Petition is closed.