2015(3) ALL MR (JOURNAL) 4
(GUJARAT HIGH COURT)
BHASKAR BHATTACHARYA, J.
Oriental Insurance Company Ltd. Vs. Vasantlal Purushottamdas Soni & Ors.
First Appeal No.151 of 2004,First Appeal No.152 of 2004
15th September, 2014.
Petitioner Counsel: Mr. MAULIK J SHELAT
(A) Motor Vehicles Act (1988), S.166 - Claim petition - All 12 claimants relying on selfsame FIR lodged by one of them to prove factum of accident - However, seeking to deny it partially as regards admission of fact that they were travelling in " hired jeep" - Not permissible. (Paras 11, 14)
(B) Motor Vehicles Act (1988), S.166 - Insurer's liability - Head on collision between truck and jeep - In all 12 persons travelled in jeep out of which 7 died and 5 injured - There was only an Act policy in respect of jeep with additional premium for 5 passengers that too limited to Rs.50,000/- for each passenger - Jeep was registered as private vehicle - Clear violation of terms and conditions of policy - Insurer of jeep not liable - However, claimants can realize amount from insurer of truck who will then recover it from driver and owner of jeep. (Paras 7, 8, 16, 21)
Oriental Insurance Co. Ltd. Vs. Premlata Shukla & Ors., 2007 ALL SCR 1750=(2007) 13 SCC 476 [Para 12]
New India Assurance Co. Ltd. Vs. Jaysukhlal Maganlal Doshi & Ors., 2014(2) ALL MR (JOURNAL) 15=2013 (3) GLR 2283 [Para 13]
T.O. Anthony Vs. Karvarnan & Ors., 2008(3) ALL MR 902 (S.C.)=(2008) 3 SCC 748 [Para 19]
JUDGMENT :- All these 11 appeals are taken up together as these appeals come out of 11 different claim-applications under section 166 of the Motor Vehicles Act arising out of the same accident and disposed of by a common judgment.
2. There is no dispute that on 28th November 1992, while more than 10 persons were travelling in a jeep insured by the present appellant and were proceeding from Badoli to Akshardham, there was a head-on-collision of the said jeep with another truck bearing No.GTX-5564 coming from the opposite direction, resulting in death of 7 persons and injury to the other 5. The insurer of the offending truck was New India Assurance Co. Ltd. and the insurer of the jeep was the appellant, namely, Oriental Insurance Co. Ltd.. 12 different claim-applications were filed and in all those matters, the driver, owner and insurer of both the vehicles were made parties. In all the claim-applications, the respective claimants relied upon the common FIR lodged by claimant of one of the claim-applications, namely, Kavitaben Vinodbhai Prajapati, claimant of MAC Petition No.7 of 1993.
3. The proceedings were contested only by two Insurance Companies but neither the driver nor the owner of either of the vehicles contested the proceedings. At the time of hearing which was analogously made, all the applicants separately gave evidence and they were cross-examined by the learned counsel for the two Insurance Companies.
4. The learned Tribunal below, on consideration of the materials on record, came to the conclusion that the accident occurred due to negligence of 70% of the driver of the offending truck and 30% of the driver of the jeep. Consequently, the following award was passed specifying the liability of each of the parties :-
|MACP No.||Amount of Compensation||Opponent Nos. 1 to 3 (70%)||Opponent Nos.4 to 6 (30%)|
|43/93 To be paid||Rs.0,55,400/-||Rs.0,38,780/- Rs.0,38,800/-||Rs.0,16,620/-Rs.0,16,600/-|
|45/93 To be paid||Rs.0,23,700/-||Rs.0,16,590/- Rs.0,16,600/-||Rs.0,07,110/- Rs.0,07,100/-|
|1150/92 To be paid||Rs.2,02,800/-||Rs.1,41,960/- Rs.1,42,000/-||Rs.0,60,840/- Rs.0,60,800/-|
|7/93 To be paid||Rs.3,76,400/-||Rs.2,63,480/- Rs.2,63,500/-||Rs.1,12,920/- Rs.1,12,900/-|
|274/93 To be paid||Rs.0,57,900/-||Rs.0,40,530/-Rs.0,40,500/-||Rs.0,17,370/- Rs.0,17,400/-|
6. I, however, propose to dismiss the two appeals being First Appeal Nos.159 of 2004 and 160 of 2004 against the award passed in MAC Petition Nos.44 of 1993 and 45 of 1993 respectively, as those appeals are barred by the provisions contained in Section 173(2) of the Act as the disputed amount being less than Rs.10,000/-.
7. Mr Shelat, the learned advocate appearing on behalf of the appellant in all these appeals has challenged the judgment resulting in awards by contending that in all the appeals, the claimants themselves having relied upon the FIR dated 28th November 1992 being Exh.71 (page-97 of the paper-book), the Tribunal below committed substantial error of law in passing the awards against his client. Mr Shelat by drawing attention of this Court to the averments made in the FIR submits that in the said FIR it is specifically stated that all the occupants were going to Akshardham in the "hired jeep". According to Mr Shelat, all the claimants having relied upon the said FIR, the Tribunal below ought to have passed no award against his client inasmuch as it will appear on the face of the insurance policy which has been marked exhibit at the instance of the claimants themselves being Exh.45 that it was not a comprehensive or package policy but a pure Act policy with additional premium taken for 5 passengers and the liability is limited to the extent of Rs.50,000/- for each.
8. In other words, according to Mr Shelat, admittedly there were more than 5 persons beyond the sitting capacity of the jeep and, at the same time, although the jeep is registered as private jeep as would appear from the policy itself, the Tribunal should not have passed awards against his client for admitted breach of terms of the policy. He has also pointed out to this Court that in the policy itself, the following limitation is imposed :-
"Use only for social, domestic and pleasure purposes and for the insured's own business.
The policy does not cover the use for hire or reward or for organised racing, pace-making, reliability trials, speed testing, the carriage of goods (other than samples) in connection with any trade or business or use for any purpose in connection with Motor Trade."
9. Ms Archana Patel, the learned advocate appearing on behalf of Mr Japee, the learned advocate for the claimants in First Appeal No.155 of 2004, arising out of MAC Petition No.1152 of 1992, has, on the other hand, vehemently opposed the aforesaid contentions of Mr Shelat and contended that so far her clients are concerned, though specific suggestion was given in cross-examination that the jeep was taken for hire or reward, the witness for the clients specifically denied the same. Ms Patel contends that at least her clients are not bound by the statement made in the FIR by the claimants of another claim-application. Ms Patel, therefore prays for dismissal of the above First Appeal where she appears for the claimants.
10. None appears on behalf of the claimants of the other appeals and, at the same time, none has also appeared on behalf of the insurer of the offending truck who has been held to be guilty of 70% negligence.
11. Therefore, the only question that arises for determination in these appeals is, whether in view of the fact that all the claimants have relied upon the selfsame FIR lodged by one of the claimants all the applicants in the twelve claim-applications are bound by the statement made in the said FIR.
12. As pointed out by Mr Shelat, the learned advocate appearing on behalf of the appellant that in the case of Oriental Insurance Co. Ltd. vs. Premlata Shukla & Ors. reported in (2007) 13 SCC 476 : [2007 ALL SCR 1750] the question arose whether a party can rely upon the statement made in one part of a document by denying the contents of the other part though the document has been relied upon by such party. In the said case also, it was the contents of the FIR which was lodged were relied upon to prove the factum of an accident . In such context, the Supreme Court made the following observations :-
"13. However, the factum of an accident could also be proved from 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.
14. 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.
15. A party objecting to the admissibility of a document must raise its objection at the appropriate time. If the objection is not raised and the document is allowed to be marked and that too at the instance of a party which had proved the same and wherefor consent of the other party has been obtained, the former in our opinion 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 Hukam Singh (supra), the law was correctly been laid down by the Punjab and Haryana High Court stating;
"8. Mr. G.C. Mittal, learned counsel for the respondent contended that Ram Partap had produced only his former deposition and gave no evidence in Court which could be considered by the Additional District Judge. I am afraid there is no merit in this contention. The Trial Court had discussed the evidence of Ram Partap in the light of the report Exhibit D.1 produced by him. The Additional District Judge while hearing the appeal could have commented on that evidence and held it to be inadmissible if law so permitted. But he did not at all have this evidence before his mind. It was not a case of inadmissible evidence either. No doubt the procedure adopted by the trial Court in letting in a certified copy of the previous deposition of Ram Partap made in the criminal proceedings and allowing the same to be proved by Ram Partap himself was not correct and he should have been examined again in regard to all that he had stated earlier in the statement the parties in order to save time did not object to the previous deposition being proved by Ram Partap himself who was only cross-examined. It is not a case where irrelevant evidence had been let in with the consent of the parties but the only objection is that the procedure followed in the matter of giving evidence in Court was not correct. When the parties themselves have allowed certain statements to be placed on the record as a part of their evidence, it is not open to them to urge later either in the same Court or in a court of appeal that the evidence produced was inadmissible. To allow them to do so would indeed be permitting them both to approbate and reprobate."
13. Mr Shelat also relied upon a Division Bench decision of this Court in the case of New India Assurance Co. Ltd. vs. Jaysukhlal Maganlal Doshi & Ors. reported in 2013 (3) GLR 2283 : [2014(2) ALL MR (JOURNAL) 15] dealing with a case of the similar nature where the Division Bench made the following observations :-
"17. The legal position is not in dispute that mere production and marking of a document as exhibit by the Court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence i.e. by the evidence of those persons who can vouchsafe for the truth of the fact in issue. The situation is, however, different where the documents are produced by a party who proposes to rely on the same, but at the same time denies a particular fact stated in the document, which does not suit his case, so as to fix the liability anyhow of the Insurance Company. The claimant, who relied and produced the document, cannot say that on the strength of the contents of such a document only the factum of accident should be believed whereas the other contents should not be believed. We are also not oblivious of the fact that ordinarily an averment made in the first information report would not be admissible in evidence per se, but as the averment made in the first information report as regards obtaining the vehicle on hire has been made a part of the claim petition, there is no doubt whatsoever that the Tribunal and consequently, the appellate Courts would be entitled to look into the same.
18. There is no doubt that the burden is on the insurance company to prove the breach of conditions of the insurance policy. The question as to whether burden of proof has been discharged by the party to the lis or not, would depend upon the facts and circumstances of the case. If the facts are admitted or, if otherwise, sufficient materials have been brought on record so as to enable a Court to arrive at a definite conclusion, it is idle to contend that the party on whom the burden of proof lay would still be liable to produce direct evidence to establish that the jeep was taken on hire. When the first information report has been relied upon by the claimants themselves, then in such circumstances, there cannot be any doubt whatsoever that the same can be looked into for deciding the main issue in controversy."
14. As stated earlier, in all the claim-applications the respective claimants having based their claim by relying upon the aforesaid FIR, they now cannot submit before this Court that they relied upon the FIR only for the purpose of proving the factum of accident but they do not rely upon other statement where the jeep in question has been admitted to be a hired jeep.
15. I, thus, find that the Tribunal below totally overlooked the aforesaid aspect of the admitted materials on record and did not accept the contention of the appellant that there was breach of condition of insurance.
16. I, thus, find that in the facts of these cases the Tribunal below committed substantial error of law in fixing the liability upon the appellant before this Court notwithstanding the fact that there was violation of the terms and conditions of the policy.
18. At this stage, Ms Patel, the learned advocate appearing on behalf of the claimants submitted that this Court should clarify that this modification will not stand in the way of the claimants including her clients in recovering even the balance 30% amount which is payable by the owner and driver of the jeep from the insurer of the truck and thereafter, the said insurer of the truck can recover that amount from the owner and driver of the jeep.
19. I find substance in the aforesaid contention of Ms Patel having regard to the following observations of the Supreme Court in paragraphs 6 and 7 of the judgment in the case of T.O. Anthony vs. Karvarnan & ors. reported in (2008) 3 SCC 748 : [2008(3) ALL MR 902 (S.C.)] :-
"6. "Composite negligence" refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence.
7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is his contributory negligence. Therefore where the injured is himself partly liable, the principle of 'composite negligence' will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error."
20. In the result, First Appeal Nos.159 of 2004 and 160 of 2004 arising out of MAC Petition Nos.44 of 1993 and 45 of 1993 respectively are dismissed as not maintainable in view of the provisions of section 173(2) of the Act regarding valuation of the appeal.
21. So far the other nine appeals are concerned, those are allowed by modifying the award impugned in these appeals by exonerating the appellant, the insurer of the jeep and, at the same time, giving liberty to the claimants to realise the entire award from the other Insurance Company being original opponent No.3, namely, New India Assurance Co. Ltd. with liberty to the said opponent, however, to realise 30% from the owner and driver of the jeep.
22. The amount already deposited by the appellant pursuant to the condition of the stay imposed by this Court in the past, and which is lying with the Tribunal in Fixed Deposit be returned to the appellant with accrued interest thereon.
23. The amount which has been deposited in terms of section 173 of the Act before this Court be transmitted to the Tribunal, if not already transmitted, and the same may also be released in favour of the appellant by the Tribunal.