The Bajaj Allianz General ... vs Gosam Chinniah/Gosam Anrasi ...
2022 Latest Caselaw 3664 Tel

Citation : 2022 Latest Caselaw 3664 Tel
Judgement Date : 13 July, 2022

Telangana High Court

The Bajaj Allianz General ... vs Gosam Chinniah/Gosam Anrasi ... on 13 July, 2022

Bench: G.Anupama Chakravarthy

     HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

                    M.A.C.M.A.No.394 of 2018

JUDGMENT :

The appeal is arising out of the order dated 31.08.2017, in

MVOP.No.450 of 2008 on the file of Motor Accident Claims

Tribunal-cum-III Additional District Judge (FTC), Nizamabad.

For the sake of convenience, the parties are arrayed as in the OP.

2. The appeal is filed by the Insurance Company, who is

respondent No.2 in the O.P. The O.P. is filed before the Tribunal

under Sections 166(1)(a) and 163 of the Motor Vehicles Act,

claiming compensation of Rs.8,00,000/- for the injuries sustained

by claimant No.1 in the accident occurred on 04.05.2006 at 10.00

p.m. During the pendency of the O.P., claimant No.1 died and

claimant Nos.2 to 4 are brought on record as his legal

representatives. It is the case of claimant No.1 that he used to earn

Rs.12,000/- to Rs.15,000/- per month by doing wholesale business

in tamarind, was aged about 33 years, hale and healthy prior to the

accident. Due to the said accident, the 1st claimant's leg was

amputated above the knee and was unable to stand or work and

GAC, J MACMA.No.394 of 2018

thus, lost his total earning capacity. Therefore, he prayed to grant

Rs.8,00,000/- which includes the medical expenses.

3. A detailed counter affidavit was filed by the Insurance

Company before the Tribunal, disputing the manner of accident

and contended that the Insurance Company is not liable to pay any

compensation to the injured as there were violations as per Section

123 of the Motor Vehicles Act.

4. The Tribunal, after considering the oral and documentary

evidence on record, has come to a conclusion that the claimants are

entitled for compensation for the injuries sustained by the 1st

claimant and awarded an amount of Rs.7,38,400/- and apportioned

the amount to claimant Nos.2 to 4. Aggrieved by the said order,

the Insurance Company has preferred this appeal.

5. Heard learned counsel for both the parties and perused the

record.

6. It is contended by the learned counsel for the appellant-

Insurance Company that they are not disputing the quantum of

GAC, J MACMA.No.394 of 2018

amount awarded to the claimants, but, contended that the Insurance

Company is not liable to pay compensation to the claimants

in view of the violations made by the driver of the tractor of the 1st

respondent, by allowing Claimant No.1 to sit beside him. It is

further contended that the Tribunal ought to have made an

observation that the 2nd respondent is liable to recover the amount

from the 1st respondent (pay and recover) in view of the violations

made by the driver of the 1st respondent.

7. On perusal of the entire evidence on record, there is no

dispute as to the accident is concerned, which occurred on

04.05.2006. It is the specific contention of the learned counsel for

the appellant that the recitals of FIR clearly disclose that the

deceased boarded the paddy loaded tractor bearing No.

AP-25-M-4391 and trolley No.AP-25-E-6354 and he sat on the

tractor by the side of the driver and while travelling, some of the

paddy bags fell down from the tractor which was noticed by the

driver of the tractor, who stopped the tractor and asked

Claimant No.1 for loading the paddy bags and turned the tractor in

a rash and negligent manner, due to which, Claimant No.1 fell

GAC, J MACMA.No.394 of 2018

down and the rear wheels of the tractor ran over the right leg of

Claimant No.1. But, the Tribunal did not consider the recitals of

Ex.A-1/FIR, but basing on the recitals of the charge sheet, it came

to the conclusion that the injured fell from the paddy load and

sustained injury, but not due to fall from the tractor.

8. Section 123 of the Motor Vehicles Act envisages about

riding on running board etc., which reads as follows:

"1. No person driving or in charge of a motor vehicle shall carry any person or permit any person to be carried on the running board or otherwise than within the body of the vehicle.

2. No person shall travel on the running board or on the top or on the bonnet of a motor vehicle."

9. It is contended by the appellant-Insurance Company that

as per the FIR, Claimant No.1 sat beside the driver on the date of

accident and later fell down and sustained injuries in the accident,

which is a clear violation as per Section 123 of the Motor Vehicles

Act.

10. Though Ex.B-1/Insurance Policy is in force as on the date of

accident, it cannot be considered to indemnify the acts of the driver

GAC, J MACMA.No.394 of 2018

of the 1st respondent as he violated the terms and conditions of the

policy.

11. Admittedly, this appeal is filed by the Insurance Company

and they are not at all disputing the Award made by the Tribunal

granting Rs.7,38,400/- to the claimants. It is only disputed by the

Insurance Company that in view of the violations made by the

driver of the tractor, the Insurance Company is entitled to pay and

recover the amount from the 1st respondent. A Larger Bench of the

Hon'ble Apex Court in National Insurance Co. Ltd. v. Pranay

Sethi & others1, directed that the Insurance Company shall pay

compensation to the third parties and recover the same from the

policy holders, in case of violations made by the drivers of the

motor vehicles concerned, where policy is in force.

12. Admittedly, the FIR/Ex.P-1 is not an encyclopedia to contain

the true facts of the case. In the judgment in Ramesh Maruti Patil

v. State of Maharashtra2, the Hon'ble Supreme Court held as

under;

2017 ACJ 2700

1995 SCC (Cri) 149

GAC, J MACMA.No.394 of 2018

"We are mindful of the position that the FIR is not a substantive piece of evidence and has a limited use. It is also not an encyclopaedia of the prosecution case. It is from the nature of the FIR and other surrounding circumstances to be seen whether there was any scope for any confusion at the time when the informant gave it or was it a version which merited explanation at the eventual trial."

13. In the present case, Claimant No.2, who is the wife of the

injured, is the informant who gave report to the Police basing on

the information passed on to her through somebody. Hence, the

contents of FIR cannot be said to be true as the report itself is made

basing on the hearsay evidence. The contents of Ex.A-2/charge

sheet are based on the investigation made by the Police. The

Tribunal, while passing the award, held that both the respondents

are jointly and severally liable to pay the compensation. If at all

there are any violations made by the 1st respondent, the

appellant/Insurance Company i.e. the 2nd respondent in the O.P., is

at liberty to recover the same from the 1st respondent by duly

making payment to the claimants in view of the insurance