22 July 2019


Judgments

High Court of Tripura

Kalpana Majumder and Ors. v. Sankar Debnath and Ors.

MANU/TR/0077/2017

08.05.2017

Motor Vehicles

FIR is not a substantive piece of evidence; it can be used only for purposes of corroboration or contradiction of maker only

Aggrieved by nil award passed by learned Member, Motor Accident Claims Tribunal, present appeal is preferred by appellant-claimants. Appellant claimed that, accident occurred due to rash and negligent driving of driver of said Mahindra Maxx. Police registered a case under Sections 279 and 304-A of Indian Penal Code, 1860 (IPC) against driver of offending vehicle. Appellants, therefore, filed claim petition claiming a compensation of Rs. 26,44,000/- for death of deceased. Deceased was stated to be a fisherman at time of accident and was earning Rs. 9,000/- per month as an income. He was also stated to be 50 years of age, when he met the accident.

Claim petition was opposed by owner of vehicle, who is Respondent No. 1 herein, by filing his written statement. He denied that, accident occurred due to the rash and negligent driving. He claimed that, on date of accident, vehicle had valid documents and was driven by its driver, who had a valid driving license and that vehicle was insured with the New India Assurance Co. Ltd., which was accordingly liable to satisfy should any compensation be awarded to Appellants. Insurer also contested claim petition and filed its written statement wherein it denied and disputed claims of Appellants. Question which now falls for consideration is whether there are sufficient evidence to substantiate second part of findings of Tribunal that, deceased and his colleagues were travelling in vehicle in question as passengers at time of the accident and were, therefore, not entitled to compensation as they were gratuitous passengers.

Suggestion, which is denied by the witness, does not carry any weight in the law of evidence. PW-3 and PW-4 are the fishermen who were together with the deceased at the time of the accident and were also hit by the same offending vehicle, but they, unlike the deceased, managed to survive and could tell the tale. The cross-examinations of these two witnesses comprising of hardly three question, that too, only in the form of suggestions, are hardly of any assistance to Respondents.

Pleaded case of insurer in their written statement is that, vehicle in question was not involved in accident or that alternatively, there was no rash and negligent driving of vehicle. It was for first time in witness box, on basis of police investigation report, that insurer took plea that, deceased and his colleagues were travelling in that goods vehicle at time of accident. It is to be noticed that, author of police papers were never examined by insurer to prove their contents. FIR was lodged by son of deceased 9 days after accident, but it was explained therein that, it could not be lodged in time as they were mentally upset due to treatment of his father. Delay in lodging the FIR per se is not always fatal as long as there is credible explanation for delay. It can, therefore, be said that, there is satisfactory explanation for delay.

In Rampati Chakma v. Sunil Kumar Ram and others and in Mahila Dhanwanti and others v. Kulwan and others, it was held therein F.I.R. is a public document, but it is rule of law that, it is not a substantive piece of evidence. It can be used only for purposes of corroboration or contradiction of the maker only. Evidence recorded in criminal Court and findings arrived at thereon should not be used in claim cases. Such evidence, for purposes of claim cases is inadmissible.

In R.P. Gautam v. R.N.M. Singh and another, Madhya Pradesh High Court lucidly summed up proposition of law that, it is settled proposition of law that every civil case is decided on its own facts and evidence without influencing the papers and decision of the criminal case. In such premises registration of offence and police investigation is not a condition precedent for awarding the claim. Besides this due to one reason or another if the first information report of vehicular accident is not lodged with the police or the same was given at later stage and police neither registered the offence nor investigated the same, it does not mean that right of the victim for compensation who suffered the vehicular accident is washed away. The victim remains entitled for compensation on proving the facts and circumstances regarding such accident and factum of injuries sustained by him, he could not be deprived from such right, provided by the Motor Vehicles Act, although such compensation may be awarded only on proving all relevant facts with all probabilities.

Proposition of law laid down in paragraphs extracted in foregoing is squarely applicable to facts of present case. In absence of examining author of aforesaid police papers to prove contents thereof and of keeping in mind glaring fact that, case now being set up by insurer is never their pleaded case, Court concluded that, deceased was not travelling in vehicle in question, but was rather knocked down by it, which resulted in his death. Findings of Tribunal to contrary cannot be sustained in law and are, set aside. However, this Court is not equipped with all necessary evidence to go into quantum of compensation payable to claimants-appellants. Moreover, Appeal is of 2016, it will be more expedient to remand case to Tribunal for determination of compensation by giving parties liberty to adduce evidence/further evidence to substantiate their respective cases. Case is remanded to Tribunal, to proceed with trial of claim petition for sole purpose of determining just compensation payable to Appellants in accordance with law.

Relevant

Mahila Dhanwanti and Ors. vs. Kulwant and Ors. MANU/MP/0011/1994
, R.P. Gautam vs. R.N.M. Singh and Anr. MANU/MP/0514/2007

Tags : Nil Award Compensation Entitlement

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