Friday, 12 August 2016

When certified copies of police papers can be read in evidence without additional proof?

In this case the petitioners have produced
 certified copies of the F.I.R., spot panchanama and
 inquest panchanama. Since they are certified copies,
 they can be read in evidence without any additional
 proof. Those are public documents. 
 United India Insurance Co. Ltd.

 Sayaji s/o. Masuji Shinde


PRONOUNCED ON : 04.08.2008 
Citation:2009 (3) MHLJ539

 2.This is an appeal preferred by the insurance
 company, which is original opponent No.2 being
 aggrieved by the judgment and award passed by the
 Member, Motor Accident Claims Tribunal, Hingoli in
 M.A.C.P. No. 176 of 2001 decided on 10.10.2005.
 Respondent Nos. 1 to 6 are the original claimants.
 They are legal heirs of deceased Gajanan s/o. Sayaji
 Shinde, who was son of respondent No. 1 and 2,
 husband of respondent No.3 and father of respondent
 Nos. 4 to 6. Respondent No.7 is the insured and
 owner of truck No. MP-09-KA-9549.
 3.It is original case of the claimants that on
 22.01.2001 the deceased Gajanan was travelling in
 Truck No. MP-09-KA-6549 and went to Chor Pangra. He
 was on duty as a cleaner. One Shaikh Abdul was the
 driverWhen of the said truck. the truck was

 returning back, it was being driven rashly &
 negligently and in excessive speed. When the truck
 came near Ganeshpur, the driver lost his control and
 suddenly he applied breaks. Due to severe jerk and
 fast speed of the truck, the deceased was thrown on
 road and had sustained severe injuries and fractures
 on various parts of the body and become unconscious.
 He was taken to the hospital at Risod, but died on the
 next day. In the claim petition it is also mentioned
 that deceased Gajanan had gone to Chor Pangra for
 taking Jawar and Wheat. Thus the original case made
 out in the claim petition is that Gajanan was on duty
 as a cleaner and as such an employee of owner of the
 truck respondent No.7-Pankajkumar Gandhi.
 4.It is argued on behalf of the present
 appellant that in-fact, Gajanan was one of the members
 of a marriage party which was illegally being
 transported in the truck. Gajanan was sitting on
 "Falka" (rear side of wooden gate of the truck). As
 he was hit against a branch of a tree, he fell down
 from the truck and sustained injuries. In the truck,
 passengers were being carried illegally. There was
 breach of terms and conditions policy and as such the
 appellant is not liable. The appellant does not

 dispute the award of compensation of Rs.2 lakhs to
 respondent Nos. 1 to 6. It is stated that the owner
 of the truck is liable and the appellant insurance
 company is not liable to reimburse the owner of said
 compensation due to breach of terms and conditions of
 the policy.
 5.It is also argued before this Court that the
 Trial Court has not considered this aspect while
 deciding the matter inspite of the fact that there was
 evidence led by the appellant. The written statement
 filed by the appellant is at Exh.12 and it is
 specifically stated that deceased Gajanan was not on
 duty as a cleaner. He was not carrying any goods like
 Wheat and Jawar. When the written statement was
 filed, necessary particulars of the policy were not
 given. Therefore, it is also stated that the policy
 was not obtained, but now it is admitted position that
 the policy was obtained. It is further stated in para
 19 that there was breach of policy terms as passengers
 were carried in the goods truck.
 6.Girjabai (respondent No.3) is examined at
 Exh.27. She stated that the incident took place at
 about 7 1/2 years ago. On that day along with her

 husband, she and respondent No.1 had gone to Chor
 Pangra to see her ailing maternal uncle. They
 purchased one quintal Wheat and one quintal Jawar from
 her uncle and kept it in the truck which was to come
 to Chor Pangra. Near Ganeshpur, when they were
 travelling with the goods, the truck was in high speed
 and due to negligence of the driver, the deceased fell
 down from the truck and sustained injury on the head.
 7.So, the case that the deceased was employee of
 the truck owner and was on duty as a cleaner is not at
 all stated by the witness of the claimants. In para
 3, respondent No.3-Girjabai stated that the deceased
 was doing work as a "Hamal" (coolie), but in the same
 breath she stated that elder brother of the deceased
 owned an Adat Shop and the deceased was working as a
 "Hamal" with him and was getting Rs. 150/- to
 Rs.175/- per day. It is contrary to what is stated in
 the claim petition. In cross-examination the witness
 admitted that she had given instructions to her
 advocate and accordingly the claim petition was filed.
 She also said that the claim petition is filed on the
 basis of police papers. She admitted that she had not
 stated in the claim petition that her husband was
 working as a "Hamal" with his brother.

 8.At Exh.30 Shivaji Shinde - brother of the
 deceased is examined. He was not eye-witness to the
 incident, but he said that the deceased was working as
 a "Hamal" in his shop. It falsifies the case made out
 in the claim petition that the deceased was working as
 a cleaner on the truck.
 9.On behalf of the appellant, Advocate Shri
 Mahendra Gaikwad is examined as a witness at Exh.32.
 He was appointed as an Investigator in the matter. He
 collected copies of F.I.R., spot panchanama,
 statements of the witnesses and produced them with his
 report. His investigation showed that the deceased
 and his wife with other persons were travelling in the
 said truck, free of costs, along with bride and
 bridegroom, who were sitting in the cabin. The
 deceased was sitting on wooden "Falka". He fell down
 and died on the spot. The witness proved his report
 at Exh.33.
 10.In this case Arun Jawanjal, Branch Manager of
 the appellant-insurance company is examined at Exh.34.
 He produced copy of insurance note at Exh.35. He also
 proved the letter appointing Advocate Shri Mahendra

 Gaikwad as an Investigator.
 11.In this case the petitioners have produced
 certified copies of the F.I.R., spot panchanama and
 inquest panchanama. Since they are certified copies,
 they can be read in evidence without any additional
 proof. Those are public documents. Along with
 Exh.23, certified copies of F.I.R., spot panchanama,
 inquest panchanama, post mortem notes and statements
 of witnesses recorded by the police are produced by
 the appellant. The certified copy of the F.I.R.
 clearly shows that deceased Gajanan was a member of
 the marriage party which was being transported in the
 goods truck No. MP-01-KA-6549. It is mentioned in
 the complaint lodged by Head Constable Khandalkar that
 on investigation he came to know that deceased Gajanan
 had gone to Chor Pangra for attending a marriage and
 he was returning after marriage in the truck along
 with other persons. The bride, bridegroom and ladies
 were sitting in cabin and other were sitting in the
 back side. The deceased fell down from the truck.
 12.In my considered opinion, the Trial Court
 could not have ignored the change in the case made out
 by the appellant. It is no more disputed that the

 truck in question was a goods carriage vehicle and not
 a passenger carrier vehicle and as such question
 arises whether risk of death of passenger is covered.
 Absolutely, there is no evidence to show that the
 deceased was travelling in the truck as an owner of
 goods. The original case made out in the petition
 that deceased was travelling as a cleaner has been
 given complete go-by by petitioner Girjabai. She has
 made out a new case. In the circumstances the defence
 cannot be lightly brushed aside. Since Motor Accident
 Claims Tribunal is a tribunal, strict rules of
 evidence are not applicable and the Tribunal can very
 well consider what was the case made out before the
 Police after the incident. This Court can take into
 consideration the certified copies of various
 documents on record.
 13.In support of their argument, the learned
 advocates for the appellant and the respondents cited
 few cases. The case of Oriental Insurance Co. Ltd.
V/s. Premlata Shukla and Ors., 2007 AIR SCW 3591 is
 cited for the proposition that where party brings on
 record certain documents, such party cannot be
 permitted to contend that only part of the contents of
 the documents should be read which are convenient to

 it and rest part should not be read in evidence. Once
 document is admitted in evidence, it can be read as a
 whole. In this case, the petitioner has filed
 certified copies of the F.I.R. on record and now it
 does not lie in the mouth of respondent Nos. 1 to 6
 that the same should not be considered merely because
 its contents are against the case made out by them.
 The petitioner wants this Court to rely on certified
 copies produced by respondent Nos.1 to 6 to hold that
 deceased Gajanan, who was travelling in the truck in
 question fell down from the truck and died as a result
 of injuries sustained. They also want this court to
 rely on the copy of the policy on record to show that
 respondent No.7 was the owner and the appellant was
 the insurer of the truck in question.
 14.In the case of M/s. National Insurance Co.
Ltd. V/s. Prakash Sakharam Dudhankar & Ors., 2006(2)
ALL MR 239, death of passenger travelling in goods
 vehicle had occurred and it was held that the
 insurance company cannot be made liable to pay
 compensation if the passenger is travelling in the
 goods vehicle. It was not relevant as to whether the
 passenger was travelling as fare paying passenger or
 as a gratuitous passenger. The learned advocate for

 respondent Nos. 1 to 6 wanted this Court to rely on
 para 6 in which direction was given to the insurance
 company to satisfy the award and then recover the same
 from owner of the vehicle. In that case the direction
 was also given for the purpose of said recovery that
 it would not be necessary for the insurer to file
 separate suit, but it may initiate proceeding before
 the executing court as if dispute between insurer and
 owner was subject matter for determination before the
 15.Reliance was placed on the case of New India
Assurance Co. Ltd.V/s. Asha Rani and others, 2002
AIR SCW 5259. In that case, in para 9 the following
 observations are made:-
 "9............ If the Motor Vehicles Amended
 Act of 1994 is examined, particularly Section
 46 of Act 6 of 1991 by which expression
 ’injury to any person’ in the original Act
 stood substituted by the expression ’injury to
 any person including owner of the goods or his
 authorised representative carried in the
 vehicle’ the conclusion is irresistible that
 prior to the aforesaid Amendment Act of 1994,
 even if widest interpretation is given to the
 expression ’to any person’ it will not cover
 either the owner of the goods or his
 authorised representative being carried in the
 vehicle. The objects and reasons of clause 46
 also states that it seeks to amend Section 147
 to include owner of the goods or his
 authorised representative carried in the
 vehicle for the purposes of liability under
 the Insurance Policy. It is no doubt true

 that sometimes the legislature amends the law
 by way of amplification of an inherent
 position which is there in the statute, but a
 plain meaning being given to the words used in
 the statute, as it stood prior to its
 amendment of 1994, and as it stands subsequent
 to its amendment in 1994 and bearing in mind
 the objects and reasons engrafted in the
 amended provisions referred to earlier, it is
 difficult for us to construe that the
 expression ’including owner of the goods or
 his authorised representative carried in the
 vehicle which was added to the pre-existed
 expression ’injury to any person’ is either
 clarificatory of or amplification the
 pre-existing statute. On the other hand it
 clearly demonstrates that the legislature
 wanted to bring within the sweep of Section
 147 and making it compulsory for the insurer
 to insure even in case of a goods vehicle, the
 owner of the goods or his authorised
 representative being carried in a goods
 vehicle when that vehicle met with an accident
 and the owner of the goods or his
 representative either dies or suffers bodily
 injury. The judgment of this Court in
 Satpal’s case, therefore must be held to have
 not been correctly decided and the impugned
 judgment of the Tribunal as well as that of
 the High Court accordingly are set aside and
 these appeals are allowed."
 16.In this case accident had occurred on
 22.01.2001. Even in the case of National Insurance
Co. Ltd. V/s. Bommithi Subbhayamma and others, 2005
ACJ 721, it is held that where gratuitous passenger is
 travelling in goods vehicle, insurance company is not
 17.The learned advocate for the respondent stated
 that in view of the observations of para 11 in the

 case of M/s. National Insurance Co. Ltd. V/s.
Prakash Sakharam Dudhankar & Ors., 2006(2) ALL MR 239,
 this Court should direct the insurance company to pay
 the amount and recover it from the owner. The learned
 advocate for the appellant relied upon case of
Oriental Insurance Co.Ltd. V/s. Rashanna Laxmanrao
Biradar, 2007(3) Bom.C.R.377, in which after referring
 to various authorities it is observed that directions
 given by the Supreme Court in 2007 AIR SCW 3734 and
2004 ACJ 428 cannot be construed as ratio laid down in
 that behalf. The same powers, which are available to
 the Apex Court under Article 136 and under Article 142
 of the Constitution, are not available to the Tribunal
 or High Court. The Apex Court did not, however, lay
 down that in all such cases, the insurer shall first
 be liable to pay and then recover it from the insured.
 18.Considering the facts and circumstances of the
 case I am inclined to allow the appeal and also
 inclined to give direction similar to one given in the
 case of M/s. National Insurance Co. Ltd. Vs.
Prakash Sakharam Dudhankar (Supra), so far amounts
 already received by the respondent Nos. 1 to 6.
 However, I agree with observations made by this Court
 in para 19 & 20 of United India Insurance Co. V/s. United India Insurance Co. V/s.

Anubai Thakare, 2008 (1) Mh.L.J.73. The law is
 correctly enunciated therein.
 19.In this case the insurance company has
 produced insurance policy at Exh.35 and limitations
 areThe typed on the insurance certificate.
 certificate makes it clear that "(2) The policy does
 not cover use whilst drawing a trailer except the
 towing (other than reward) of any one disabled
 mechanically propelled vehicles. (3) Use for carrying
 passengers in the vehicle except employees (other than
 driver) not exceeding six in number coming under the
 purview of the Workmen’s Compensation Act, 1923. Use
 only for carriage of goods within the meaning of the
 Motor Vehicles Act, 1988." These limitations clearly
 show that the gratuitous passengers are not included.
 What is included is risk of six employees and
 obviously that is provision for coolies or "Hamals"
 taken for loading and unloading. This appears to be
 the reason for the petitioners to take plea that
 deceased was a "Hamal" (coolie) or that he was a
 20.This Court is not satisfied that the deceased
 was in any way employed by respondent No. 7 who was

 stationed at Indore and doing business at Indore.
 Now, it is well settled law that passengers cannot be
 carried in a goods carriage vehicle. In-fact, it is
 an offence to carry passengers in a goods carriage
 vehicle under the Motor Vehicles Act, 1988.
 21.I may refer to paras 13 & 14 of National
Insurance Co. Ltd. V/s. Prema Devi & Ors., 2008 AIR
SCW 2023, which are as follows:-
 "13. The difference in the language of "goods
 vehicle" as appear in the old Act and "goods
 carriage" in the Act is of significance. A
 bare reading of the provisions makes it clear
 that the legislative intent was to prohibit
 goods vehicle from carrying any passenger.
 This is clear from the expression "in addition
 to passengers" as contained in definition of
 "goods vehicle" in the old Act. The position
 becomes further clear because the expression
 used is "goods carriage" is solely for the
 carriage of goods. Carrying of passengers in
 a goods carriage is not contemplated in the
 Act. There is no provision similar to Clause
 (ii) of the proviso appended to Section 95 of
 the old Act prescribing requirement of
 insurance policy. Even Section 147 of the Act
 mandates compulsory coverage against death of
 or bodily injury to any passenger of "public
 service vehicle". The proviso makes it
 further clear that compulsory coverage in
 respect of drivers and conductors of public
 service vehicle and employees carried in goods
 vehicle would be limited to liability under
 the Workmen’s Compensation Act, 1923 (in short
 "WC Act."). There is no reference to any
 passenger in "goods carriage".
 14. The inevitable conclusion, therefore, is
 that provisions of the Act do not enjoin any

 statutory liability on the owner of a vehicle
 to get his vehicle insured for any passenger
 travelling in a goods carriage and the insurer
 would have no liability therefor."
 22.Taking into consideration all circumstances
 and clear mention in the insurance certificate that no
 passenger is to be carried and the use only should be
 for carriage of goods within the meaning of Motor
 Vehicles Act, I hold that there is breach of
 conditions of the policy. The insurance company is
 not liable to pay.
 23.In the result the appeal is allowed. The
 order of the Motor Accident Claims Tribunal, Hingoli,
 as against the appellant is hereby set aside. The
 award is, however, confirmed against respondent No.7 -
 Pankajkumar s/o. Champaklal Gandhi (owner of the
 truck in question).
 .At the same time it is directed that if
 already the amount is deposited by the appellant and
 paid to respondent Nos. 1 to 6, in that case the
 insurance company is directed to recover the amount
 paid to respondent Nos. 1 to 6 from the owner of the
 vehicle i.e. respondent No. 7 and for the purpose of
 said recovery, it would not be necessary for the

 insurer to file a separate suit, but it may initiate a
 proceeding before the executing Court as if the
 dispute between the insurer and the owner was the
 subject matter of determination, before the Tribunal.
 24.The appeal is disposed of accordingly.
 Parties to bear their own costs.
 .After pronouncement of the judgment as above,
 Advocate Shri Gatne pointed out that already N.F.L.
 amount is deposited and paid to respondent Nos. 1 to
 6. However, rest of the amount is only deposited and
 there is no order of payment. Considering the two
 cases of this Court referred to above, this Court is
 of the opinion that when already the amount is
 deposited and paid to the L.Rs., it is preferable that
 the insurance company should proceed against the owner
 of the vehicle to recover the same as he would be
 primarily liable to pay the said amount to the
 claimants. Otherwise, there would be two proceedings,
 one by the insurance company against the claimants for
 recovery and another for recovery by claimants against
 the owner. Whenever, the amounts are not paid to the

 claimants, it is not proper that the insurance company
 should be asked to bear the liability and then recover
 it from the owner as if the insurance company is an
 agent of the claimant to recover the amount. In the
 circumstances, if any amount is deposited by the
 appellant/insurance company in the Court and not paid
 to the claimants, the same may be refunded back to the
 insurance company. Such amount which is not paid
 already, can be recovered by the claimants from the
 owner of the vehicle.

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