The only evidence which the Appellants rely upon for the purpose of showing that there was a breach of a condition of the policy on the part of the insured of the vehicle having been given on hire to the deceased and her group, is the first information report lodged by Shrijana Pradhan, PW 2, who was also travelling in the same vehicle. No doubt, the statement recorded by the police of Manesar Police Station, Gurgaon, states that the vehicle was taken on hire, but this is in clear conflict with the statements made on oath before the Tribunal by the claimant No. 1 appearing as PW 1 and the maker of the F.I.R., the PW 2. It is a settled principle of law that an F.I.R. is not a substantive piece of evidence but only corroborative that can also be used for contradiction under Section 145 of the Evidence Act. The Appellants have not led any evidence at all, let alone produce evidence to prove that the vehicle was taken on hire by the deceased and her family. Therefore, the question of the F.I.R. corroborating the evidence of the insurers did not arise at all when they did not have any other evidence. The Appellant insurer also failed to confront the witness with the statement contained in the F.I.R. for the purpose of contradiction, an opportunity which was available to them under Section 145 of the Evidence Act. The Appellants could have easily produced the person who wrote down the F.I.R. as a witness to prove that the PW 2 had indeed made the statement before the police which had been denied by her in her deposition before the Tribunal. This having not been done, it is difficult for this Court to accept the contention of the insurer Appellant that the vehicle was given on hire. The sworn testimony of the witness made before the Tribunal, therefore, has to be given the necessary weight age over the one that is unsworn, and in this case unsigned statement, recorded by the police which in any case has only a corroborative value.
IN THE HIGH COURT OF SIKKIM AT GANGTOK
M.A.C. Appeal No. 3 of 2009
Decided On: 17.05.2010
Branch Manager, Oriental Insurance Co. Ltd. and Ors. Vs. M.K. Subba and Ors.
Hon'ble Judges/Coram:
Sonam Phintso Wangdi, Actg. C.J.
Citation: 2011AIR Sikkim 28,2011 ACJ 1482, MANU/SI/0040/2010.
1. This is an appeal filed by the Appellants, Branch Manager, Oriental Insurance Company Ltd., under Section 173 of Motor Vehicles Act, 1988, assailing the judgment passed by the Member, Motor Accidents Claims Tribunal, East & North Sikkim at Gangtok in M.A.C.T. Case No. 17 of 2006 dated 19.12.2008 by which the claimants were awarded Rs. 23,16,700 as compensation for the death of the deceased in a motor vehicle accident.
2. The brief facts of the case are that the claimant No. 1, M.K. Subba and his wife the deceased Rajani Tamang and their children, who are the claimant Nos. 2 and 3 herein, had travelled together with the family of the deceased Buddha Tamang (Moktan) consisting of his wife deceased late Hem Kumari Lama (Moktan) and the daughter-in-law Shrijana Pradhan to Delhi where they reached on 30.12.2005. On reaching Delhi, the deceased Buddha Tamang (Moktan) requested his acquaintance Daya Chand and his wife Kanta for the use of their private vehicle (Toyota Qualis) bearing registration No. DL 3 C-S 3965 on 31.12.2005 at Delhi and on to Jaipur on 1.1.2006. The said vehicle was registered in the name of Kanta, wife of the said Daya Chand. On 2.1.2006 when the deceased Rajani Tamang accompanied by her husband the claimant Respondent No. 1, and the family of the deceased Buddha Tamang (Moktan) were returning to Delhi from Jaipur, the vehicle Toyota Qualis in which they were travelling met with an accident near Manesar, District Gurgaon, Haryana, at about 5/5.30 p.m. due to over-speeding and rash and negligent driving of the driver. In the accident, the deceased sustained severe chest injuries resulting in her going into hypovolaemic shock. The local persons who had gathered at the place of accident evacuated the injured persons including the claimant No. 1 to Pushpanjali Hospital situated at John Hall Road, Civil Lines, Gurgaon-11, in the same evening where the deceased was put on a ventilator. On 3.1.2006, the deceased suffered a sudden cardiopulmonary arrest from which she could not recover and died. Manesar Police Station (Gurgaon, Haryana) registered Case No. 2 of 2006 dated 3.1.2006 under Section 279/337/304-A, Indian Penal Code against the driver of the vehicle. It may be stated here that the deceased Buddha Tamang (Moktan) and his wife deceased Hem Kumari Lama (Moktan) also died in the accident regarding which separate claim petitions were filed by their legal representatives and are the subject matters of M.A.C. Appeal No. 4 of 2009 and M.A.C. Appeal No. 5 of 2009 respectively. Therefore, although they are not being dealt with here, the findings and the result of this appeal shall have a direct bearing on the final outcome of those appeals in consideration of which all the three appeals had been heard together.
3. Respondents-claimants in the present case later filed an application under Section 166 of the Motor Vehicles Act, 1988, for award of compensation for the death of the deceased. The claimant Nos. 1, 2 and 3 are the husband and daughters of the deceased respectively who are the Respondent Nos. 1, 2 and 3 in the present appeal. The deceased at the time of her death was stated to have been drawing a salary of Rs. 20,258 being employed under the Food Security & Agricultural Development Department, Soil and Water Conservation (East), Government of Sikkim.
4. Before the Claims Tribunal, the claim was contested by the present Appellants, the insurers. The Respondent No. 3, i.e., Kanta, wife of Daya Chand, the owner of the vehicle, did not appear despite service of notice and was proceeded ex parte. The claim was resisted by the Appellants on various grounds but the one that is material for the purpose of this appeal is that the Appellants cannot be held responsible for payment of the compensation as there was a gross violation of the terms and conditions of the insurance policy inasmuch as the accident vehicle, which was a private vehicle, was used on hire by the deceased which was not permissible under the policy of insurance. During the proceedings before the Claims Tribunal, the claimant No. 1 examined himself as PW 1 and one Shrijana Pradhan, wife of one Pawan Moktan, son of deceased Buddha Tamang (Moktan) who was one of those travelling in the vehicle when it met with the accident. On the basis of the pleadings, the Claims Tribunal framed the following issues:
(1) Whether the deceased died due to motor accident involving vehicle bearing registration No. DL 3 C-S 3965 that occurred on 2.1.2006 at Manesar, Distt. Gurgaon, Haryana?
(2) Whether there was contributory negligence on the part of the deceased?
(3) Whether the driver of the vehicle was possessing a valid driving licence at the time of accident?
(4) Whether the claimants are entitled for the compensation amount as claimed by them?
5. In support of the case, the claimants exhibited the following documents:
(1) Attested copy of the F.I.R. in four pages, Exh. 1;
(2) Attested copy of the post-mortem report in four pages of late Rajani Tamang, Exh. 2;
(3) Original copy of hospital document in regard to admission of deceased to Pushpanjali Hospital, and in regard to her treatment and leading to death during treatment, Exh. 3;
(4) Original copy of death summary of the deceased, Exh. 4;
(5) Attested copy of the Investigating Officer's certificate in regard to the no objection for transportation of the dead body to Gangtok from Haryana via New Delhi, Exh. 5;
(6) Original of 'certificate of embalming' to carry the dead body from New Delhi to Sikkim, Exh. 6;
(7) Attested copy of cargo documents, i.e., of Jet Airways in regard to the transportation of dead body from New Delhi Airport to Bagdogra Airport by air, Jet Airways, Exh. 7;
(8) Attested copy of school certificate showing date of birth of Manoj Kumar Thagim, claimant, Exh. 8;
(9) Attested copy of school certificate showing date of birth of Rajani Tamang, deceased, Exh. 9;
(10) Original copy of salary certificate of deceased late Rajani Tamang, Exh. 10;
(11) Attested copy of driving licence of driver, Tarun Massey, Exh. 11;
(12) Attested copy of the documents of vehicle DL 3 C-S 3965, i.e., registration certificate, Exh. 12;
(13) Attested copy of insurance certificate of vehicle No. DL 3 C-S 3965, Exh. 13;
(14) Attested copy of birth certificate of Aarpana Subba, claimant, Exh. 14;
(15) Attested copy of birth certificate of Rashmita Hangma Subba, claimant, Exh. 15.
6. Upon consideration of the evidence on record, both oral and documentary, the Claims Tribunal decided all the issues in favour of claimants and by the judgment dated 19.12.2008 awarded them compensation calculated at Rs. 23,16,700.
7. Before this Court, the sole ground raised for assailing the award was that the owner of the vehicle had violated the terms of the insurance policy by letting the vehicle one on hire to the deceased and his family and, therefore, the Appellant insurance company was not liable for payment of the award. Mrs. Laxmi Chakraborty, the Learned Counsel appearing on behalf of the Appellant, drew the attention of this Court to Exh. 13 which is an attested copy of the certificate of insurance and made specific reference to the limitations clause which reads as under:
Limitations: The policy covers use of the vehicle for any purpose other than (b) carriage of goods (other than samples or personal luggage) (c) organised racing (d) pace making (e) speed testing (f) reliability trials (g) any purpose in connection with motor trade (h) hire or reward other than the purpose of driving tuition.
8. It was submitted that the clause clearly prescribes that the policy covers use of the vehicle for any other purpose, inter alia, "other than hire or reward other than the purpose of driving tuition". Mrs. Laxmi Chakraborty strongly argued the fact that the vehicle was used for the purpose of hire is clearly evident from the contents of the first information report, Exh. 1, a document which was filed by the claimants in support of their case. Reliance was placed upon the following sentence appearing in the translated copy of the first information report filed by Shrijana Pradhan, PW 2, which is Annexure 2 to the present appeal:
All of us started for Jaipur from Delhi on 1.1.2006 by hiring the Qualis car bearing No. DL 3 C-S 3965.
(Emphasis Supplied)
9. This statement, as per the Learned Counsel, is a clear admission of the fact that the vehicle was taken on hire by the claimants and that the statements of the witnesses appearing to the contrary in their deposition-in-chief before the Tribunal is clearly contradictory to the contents of the F.I.R. drawn by a police officer. It was further submitted that the owner of the vehicle Kanta, Respondent No. 3, failed to appear before the Tribunal to testify on this fact thereby requiring the Tribunal to draw an adverse inference against the claimants. As per Mrs. Chakraborty, the parties are governed by the contract concluded between them and that since the evidence clearly showed that there was a violation of the terms and conditions of the contract entered between the insurer and the insured, the insurer could not be made liable for payment of the award of compensation. Mrs. Chakraborty relied upon the decision of the Apex Court in the case of Vikram Greentech (I) Ltd. v. New India Assurance Company Ltd., decided on 1.4. 2009 (SC), 15 of which it has been held as under:
(15) An insurance contract, is a species of commercial transactions and must be construed like any other contract to its own terms and by itself. In a contract of insurance, there is requirement of uberrima fides, i.e. good faith on the part of the insured. Except that, in other respects, there is no difference between a contract of insurance and any other contract. The four essentials of a contract of insurance are, (i) the definition of the risk, (ii) the duration of the risk, (iii) the premium and (iv) the amount of insurance. Since upon issuance of insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risks covered by the insurance policy, its terms have to be strictly construed to determine the extent of liability of the insurer. The endeavour of the court must always be to interpret the words in which the contract is expressed by the parties. The court while construing the terms of policy is not expected to venture into extra liberalism that may result in rewriting the contract or substituting the terms which were not intended by the parties. The insured cannot claim anything more than what is covered by the insurance policy.
[General Assurance Society Ltd. v. Chandmull Jain 1966 ACJ 267 (SC); Oriental Insurance Company Ltd. v. Sony Cheriyan MANU/SC/0495/1999 : (1999) 6 SCC 451; and United India Insurance Company Ltd. v. Harchand Rai Chandan Lal MANU/SC/0803/2004 : 2005 ACJ 570 (SC)].
10. The Learned Counsel referring to para 17 of a Constitution Bench decision of the Apex Court in the case of General Assurance Society Ltd. v. Chandmull Jain 1966 ACJ 267 (SC), submitted that "in interpreting documents relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract, however reasonable, if the parties have not made it themselves".
11. Reference was also made to single Bench decision of Orissa High Court in the case of Divisional Manager, Oriental Insurance Company Ltd. v. Arati Mishra AIR 2010 (NOC) 17 : 2011 ACJ 196 (Ori), which is reproduced below:
Motor Vehicles Act (59 of 1988), Section 147, 149--Accident claim--Liability of insurer--Third party risk--Claimants travelling as gratuitous passengers in jeep--Insurance policy issued was an 'Act only' policy covering the risk of 'third party' only in respect of a private vehicle--Offending jeep was let out on hire carrying gratuitous passengers in violation of the terms and conditions of 'Act only' policy--Also there was no mention in policy for coverage of any occupants of jeep--No liability could be fastened on insurance company.
12. The Learned Counsel, therefore, submitted that in view of the clear factual position obtaining in the case and the law laid down therefor, the Appellant insurance company could not be held liable for payment of the compensation and, therefore, the judgment to that effect deserved to be quashed and set aside.
13. Mr. Ajay Rathi, the Learned Counsel appearing for the Respondent Nos. 1, 2 and 3, did not contest the fact that the insurance policy did not cover the accident vehicle if used for hire or reward other than for the purpose as prescribed in the limitation clause of the certificate of insurance, Exh. 13, filed as Annexure 2 to the present appeal. He submits, however, that the vehicle was not used for the purpose of hire as has been clearly stated by the witnesses who are the PW 1, the claimant No. 1, and PW 2, a co-passenger in the accident vehicle. The following statement of PW 1 was specifically referred to by him:
The owner, i.e. Kanta and her husband Daya Chand had allowed our request to take the vehicle to Jaipur without any fare/hire or reward and we were allowed to take the vehicle to Jaipur. We had put fuel in obligation for the said trip.
14. Mr. Ajay Rathi, Learned Counsel, submits that the above statement could not be demolished in the cross-examination of PW 1 by the counsel on behalf of the Appellants except to make a suggestion that the vehicle was hired from Kanta, a suggestion that was categorically denied by him. He further went on to argue that PW 2 also had corroborated that fact by stating on oath that her father-in-law, the deceased Buddha Tamang, had borrowed the vehicle from his friend and that it was she who had lodged the complaint before the Manesar Police Station regarding the accident on 3.1.2006 at 2 a.m. and had proved the F.I.R. as Exh. 1 containing 4 (four) pages. The suggestion made to her in her cross-examination to the effect that the vehicle had been taken on hire from Kanta to Jaipur and back was categorically denied by her also. The following statements of PW 2 were referred to:
In examination-in-chief:
My father-in-law had taken the said vehicle from his friend due to their friendly relations.
In cross-examination:
It is not a fact that late Buddha Tamang did not have any relationship with Kanta and Daya Chand. It is not a fact that we had taken the vehicle on hire from Kanta to Jaipur and back.
15. As per Mr. Rathi, the F.I.R. is not a substantive piece of evidence but only corroborative and that the statement on oath made before court would naturally hold sway over such document prepared by the police, a third party. Mr. Ajay Rathi, Learned Counsel, referred to the judgment of Madhya Pradesh High Court in the case of Nanhu Singh v. Jaheer MANU/MP/0583/2004 : 2006 ACJ 803 (MP) and emphasized on the following:
(2) ...the core question that arises for consideration is whether the Tribunal while dealing with issue No. 6 (b), namely, whether there has been breach of policy has returned the finding correctly. Learned Counsel for the Appellant has drawn our attention to para 5 of the award passed by the Tribunal wherein the Tribunal has laid emphasis on the factum that there was discrepancy in the statement made by PW2 in the court and the F.I.R. and the F.I.R., being initial report, should be given credence. Being of this view, Claims Tribunal had arrived at the conclusion that the claimant was travelling as a passenger in the truck and hence, he was not covered by the insurance policy.
xxx
(10) Coming to the other contention that the deceased was travelling as a passenger and, therefore, the insurance company was not liable to pay any compensation, it has also no merit. True, the F.I.R., Exh. D/2C and the statement of the Investigating Officer give a version which supports the case of the insurance company, but even assuming that the F.I.R. is a public document, it is the 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.
(Emphasis supplied)
16. Mr. Rathi also referred to the case of Virat Soma v. Mohan Lal MANU/PH/0632/1993 : 1994 ACJ 432 (P&H), in para 7 where it has been held as follows:
(7) The other ground taken by the Tribunal for not awarding compensation is that in the police report, negligence has not been attributed to the autorickshaw driver. I am not inclined to subscribe to the view taken by the Tribunal as in accident cases, F.I.R. is often lodged in haste and the same cannot be a substitute for the evidence giving exhaustive version of the occurrence. The statements before the Tribunal are made on solemn affirmation, whereas the F.I.R. is never lodged on solemn affirmation.
(Emphasis supplied)
17. Mr. Rathi relying on para 11 of the decision of Madhya Pradesh High Court in the case of Hajarilal v. Lakhanpratap MANU/MP/0478/2005 : 2006 ACJ 1019 (MP), submitted that the insurance company failed to produce any other document to prove that the vehicle was given on hire to the deceased and her group. It was submitted that the burden of proof that there was a breach of the policy lay upon the insurance company which they failed to discharge.
18. The Appellants having failed to examine the person who recorded the F.I.R. or the Inspector of Police who investigated the offence, the statements in the F.I.R. to the extent that the vehicle was taken on hire could not be accepted. In support of this contention, the Learned Counsel referred to the judgment of Andhra Pradesh High Court in the case of United India Insurance Company Ltd. v. Parpudi Krishna Kumari MANU/AP/0988/2002 : 2004 ACJ 624 (AP), in para 4 of which it has been held as follows:
(4) Insofar as Exh. B1 and/or A4 copy of the F.I.R. is concerned, the same is registered on information given by one Parpudi Venkata Rao. It reveals that on 4.7.1990 at about 8 p.m. Parpudi Srinivasa Rao, driving the scooter AP 31-A 468 with S. Dhana Koti (the Respondent No. 5 herein), the scooter mechanic, and that he was driving the scooter in an intoxicated condition when the accident occurred at Km. Stone 6/7 at Yendada, Exh. A4 was marked by PW 1. The contents thereof were not proved by examining the person who recorded the F.I.R. or the Inspector of Police who investigated the offence. The F.I.R. also contains the statements given by the Respondent No. 6 herein, who is the owner of the scooter and the uncle of the deceased. He only gave opinion that Srinivasa Rao died when he was driving the scooter in intoxicated condition. In the absence of any proof of this, the statements made in the F.I.R. cannot be accepted. The contention of the Learned Counsel that the deceased was driving the scooter is, therefore, rejected.
(Emphasis supplied)
19. It was next contended by Learned Counsel that the witness PW 2 was not at all confronted with the alleged contradictory statements in the F.I.R. which was essential in order to discard the sworn testimony in the proceedings that the vehicle was given for use and not taken on hire. Therefore, the sworn testimony of PW 2 being otherwise, the contents of the F.I.R. to this limited aspect could not be accepted. Mr. Rathi referred to the judgment of Karnataka High Court in Bantu v. Annappa MANU/KA/0009/1996 : 1995 ACJ 1158 (Karnataka), in para 5 of which it has been held as follows:
(5) As far as this aspect of the matter is concerned, though I must accept that the submission canvassed by the Respondents' learned advocate is faultless, the position that remains is that as far as the present proceeding is concerned, none of the witnesses were contradicted by the F.I.R. nor have the contents of that document been put to them subsequently even though the F.I.R. was produced in these proceedings. This aspect of the matter is of paramount importance because the witnesses ought to have been given an opportunity of stating before the court as to which of the two was in fact the correct version. We have the sworn testimony in the present proceedings that the deceased was walking on the side of the road and if this version is to be discarded, it can only be done after confronting the witness with a statement that mentions otherwise and establishing as to which of the two versions is correct. To this extent, therefore, on the basis of the production of the F.I.R. the finding that there was contributory negligence on the part of the deceased is erroneous and the same will have to be set aside.
(Emphasis supplied)
20. On thoughtful consideration of the rival contentions of the parties, the pleadings and the evidence on record, I am of the view that the sole ground raised by the Appellants to assail the award of the Claims Tribunal cannot be sustained for the reasons stated as under:
The only evidence which the Appellants rely upon for the purpose of showing that there was a breach of a condition of the policy on the part of the insured of the vehicle having been given on hire to the deceased and her group, is the first information report lodged by Shrijana Pradhan, PW 2, who was also travelling in the same vehicle. No doubt, the statement recorded by the police of Manesar Police Station, Gurgaon, states that the vehicle was taken on hire, but this is in clear conflict with the statements made on oath before the Tribunal by the claimant No. 1 appearing as PW 1 and the maker of the F.I.R., the PW 2. It is a settled principle of law that an F.I.R. is not a substantive piece of evidence but only corroborative that can also be used for contradiction under Section 145 of the Evidence Act. The Appellants have not led any evidence at all, let alone produce evidence to prove that the vehicle was taken on hire by the deceased and her family. Therefore, the question of the F.I.R. corroborating the evidence of the insurers did not arise at all when they did not have any other evidence. The Appellant insurer also failed to confront the witness with the statement contained in the F.I.R. for the purpose of contradiction, an opportunity which was available to them under Section 145 of the Evidence Act. The Appellants could have easily produced the person who wrote down the F.I.R. as a witness to prove that the PW 2 had indeed made the statement before the police which had been denied by her in her deposition before the Tribunal. This having not been done, it is difficult for this Court to accept the contention of the insurer Appellant that the vehicle was given on hire. The sworn testimony of the witness made before the Tribunal, therefore, has to be given the necessary weight age over the one that is unsworn, and in this case unsigned statement, recorded by the police which in any case has only a corroborative value.
21. This being the only ground raised to assail the award by the Appellants, the rest having been abandoned by them, this Court has no hesitation in rejecting contention raised in support thereof. The principle of law laid down in the decisions cited on behalf of the Appellants are well settled and accepted but the application of those principles would depend upon the facts and circumstances of each case. In my view, the decisions do not support the case of the Appellants in the facts and circumstances obtaining in the present case.
22. In the result, the appeal is dismissed.
23. The Appellant insurance company is directed to make payment of the award to the Respondents within a period of 30 days from date of this judgment. It is further directed that the amount be divided into 3 (three) equal parts and the parts falling in the share of the Respondent Nos. 2 and 3 be kept in fixed deposits in their respective names in a nationalized bank for at least 2 (two) years in respect of the Respondent No. 2 and 5 (five) years in respect of Respondent No. 3. Compliance report in this regard may be submitted to this Court on or before the period of 30 days. Respondents shall also be entitled to an interest of 10 per cent per annum on the awarded sum with effect from the date of claim until full and final payment thereof. Failing to comply with these directions shall entail payment of an additional interest of 2 per cent respectively from the date of the claim.
24. No order as to costs.
25. A copy of the judgment be sent to the court below for information and compliance.
26. The records of the court below be returned forthwith.
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