In my view, it is the appellant’s stand that at the time of accident fare paying passengers were travelling in the offending Jeep and they were travelling on hire and reward basis. It was the burden on the appellant to prove this fact before the Tribunal as the F.I.R. was lodged on behalf of police constable. The persons, with whom the police constable enquired, were not examined before the Tribunal. The spot panchnama does not show that chili bags were found on the spot. The persons whose statements are recorded are not injured in the said accident nor filed any claim petition. {Para 6}
7. I have gone through the case laws cited by learned counsel for the appellant. The facts of the cited case and the facts in the case at hand are different. In the present case, the persons on whose statements the F.I.R. was lodged are not examined so also the persons whose statements are recorded by the police showing that they were fare paying passengers are not examined. In view of the above, I do not find any merit in the appeal.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
1005 FIRST APPEAL NO.1187 OF 2004
The New India Assurance Company Limited Vs Motilal Ramdas Chaudhari
CORAM : S. G. DIGE, J.
DATED : 23rd SEPTEMBER, 2022
1. Being aggrieved and dissatisfied with the judgment and award
passed by the Motor Accidents Claims Tribunal, Dhule (for short
“Tribunal), in M.A.C.P. No. 873 of 1998, this appeal is preferred by
the appellant-original respondent No.3-Insurance Company.
2. It is the contention of learned counsel for the appellant that the
insurance policy was issued to the Jeep, it was registered as a
private vehicle. Inspite of that, the driver of the said Jeep was
carrying passengers by accepting fare from them. It is the breach of
terms of insurance policy. The passengers in the said Jeep were
travelling on hire and reward basis. In the F.I.R., it is mentioned that
the passengers in the said Jeep were travelling by paying fare. It
establishes that there was breach of the terms of policy but this fact is
not considered by the Tribunal and awarded the compensation.
Learned counsel for the appellant further submitted that the appellant
has examined officer of Insurance company to prove the insurance
policy and its terms and conditions but the said evidence is not
considered by the Tribunal. Learned counsel for the appellant relied
on the judgment of Supreme court in the case of Oriental Insurance
Company Limited vs. Premlata Shuikla and others, reported
(2007) 13 SCC 476 and the judgment of this Court in the case of The
New India Assurance Company Ltd. vs. Balu @ Balasaheb
Sitaram Berad and others, reported in 2019 (5) ALL MR 360 and
requested to allow the appeal.
3. It is the contention of learned counsel for respondent No.3 that
the F.I.R. was lodged by third party i.e. Police Constable and not by
any eye witness. The Insurance policy of said offending Jeep shows
that the Insurance is covered for 5+1 persons. Learned counsel
further submits that no witness was examined to prove that the
passengers sitting in the said Jeep were fare paying passengers. The
Tribunal has considered all aspects and passed the impugned
judgment and order. Hence, order passed by the Tribunal is legal and
valid.
4. I have heard learned counsel for both the parties, perused the
judgment and order passed by the Tribunal.
5. The issue involved in this appeal is breach of terms and
conditions of insurance policy. It is contention of learned counsel for the appellant that in the F.I.R. it is mentioned that the passengers travelling in the Jeep had paid the fare to the driver. The F.I.R. is exhibited document hence, contents of it are proved. F.I.R. is at Exh.28. The complaint was lodged by Kashinath Pardeshi, police constable. The police constable has recorded the statements of
claimant/respondent No.1 and four other persons. In the statements
of those four persons, they have stated that they have paid fare to the
driver of the Jeep for carrying chili bags and accident was occurred
due to rash and negligent driving of the Jeep driver. Accordingly, the
crime was registered against the driver of Jeep. Admittedly, the F.I.R.
is registered on the basis of complaint of police constable Kashinath
Pardeshi. Thereafter, statements of driver of offending Jeep, original
claimant and other persons are recorded. The persons, who have
stated to the police constable that they have paid fare to the Jeep
driver, are not examined before the Tribunal. Their statements are
not produced on record. The statements of claimant and Jeep driver
on which basis the F.I.R. is filed are also not produced on record.
Exhibit means a document exhibited for the purpose of being taken
into consideration in deciding some question or other in respect of
proceeding in which it is filed. The endorsement of an exhibit number
does not mean that the document has been proved. The document
is still to be proved as per the Indian Evidence Act and it’s evidentiary
value will be appreciated by the Court. The Hon’ble Supreme Court in
the case of Narbada Devi Gupta vs. Birendra Kumar Jaiswal and
Anr. reported in 2003 Supp. (5) SCR 90 held that mere marking of
an exhibit on a document doesn’t dispense with formal proof thereof.
I have seen the corroboration to the facts mentioned in the F.I.R. It is
the spot panchnama which is prepared on the same day, which is at
Exh.39. In the F.I.R. it is mentioned that the passengers were
travelling in the Jeep with chili bags but from the spot panchnama, it
nowhere appears that chili bags or chilies were found on the spot. In
the spot panchnama, it is specifically mentioned that no damage is
caused to the chilies. In the accident the Jeep was turtled and
damage was caused to the offending Jeep. The statements of four
persons recorded by the police constable Kashinath Pardeshi
specifically stated that other four passengers were carrying chili bags
in the Jeep but the panchnama does not show the chilies or chili bags
found on the spot. Moreover, in the cross examination of claimant,
which is at Exh. 27, no suggestion was given to this witness that
other persons were travelling with him as fare passengers. The
appellant has examined their officer Subhash Puranik at Exh.41 to
prove the policy which is at Exh.42. This witness has stated that the
offending Jeep was registered as private car and policy is also issued
for private car only. The risk of fare paying passengers or
passengers carrying goods are not allowed. Exh.31 is the insurance
policy which shows the licence of carrying capacity.
6. In my view, it is the appellant’s stand that at the time of
accident fare paying passengers were travelling in the offending Jeep
and they were travelling on hire and reward basis. It was the burden
on the appellant to prove this fact before the Tribunal as the F.I.R.
was lodged on behalf of police constable. The persons, with whom
the police constable enquired, were not examined before the
Tribunal. The spot panchnama does not show that chili bags were
found on the spot. The persons whose statements are recorded are
not injured in the said accident nor filed any claim petition.
7. I have gone through the case laws cited by learned counsel for
the appellant. The facts of the cited case and the facts in the case at
hand are different. In the present case, the persons on whose
statements the F.I.R. was lodged are not examined so also the
persons whose statements are recorded by the police showing that they were fare paying passengers are not examined. In view of the above, I do not find any merit in the appeal. Hence, I proceed to pass
the following order:-
O R D E R
The appeal is dismissed. No order as to costs.
(S. G. DIGE, J.)
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