NATIONAL INSURANCE CO LTD Vs. MADIBAI

JUDGEMENT

(1.) Being aggrieved by the common award passed on 25.10.2005 passed by Addl. MACT, Dhar in claim case No. 43/03,47/03,44/03 and 45/03, these 4 appeals have been preferred by the insurance company assailing the finding of joint and several liability, against the insurance company and owner.

(2.) As per claim averments, on 15.10.2002 the villagers of village lbrahimpur came for submerging the idol of Goddess Durga in a tractor bearing No. MP11 A/1244 and trolley bearing No.MP11 A/1245 while they were going back on foot, the said tractor -trolley overturned, resultantly Ranjit and Mansharam died and Dinesh and Smt. Shakuntalabai received injuries. The L.Rs. of deceased as well as injured persons filed respective claim petitions seeking compensation under section 166 of Motor Vehicles Act as specified therein. The insurance company by filing the written statement relying upon the contents of FIR has taken defence that when the injured and deceased persons were going back in tractor trolly itself, it was overturned with the result Mansharam and Ranjit died and Dinesh and Shakuntalabai received injuries, however the story as narrated is only to fasten the liability against the company and contrary to the record. The Claims Tribunal while allowing the claim petition and granting the compensation to the L.Rs. of deceased as well to injured recorded the findings that due to rash and negligent driving of the driver of the tractor trolly it was overturned. It was further held that looking to the oral evidence adduced in a claim case the contents of FIR cannot be believed, however, relying upon oral testimony of the witness, found that story narrated in the claim petition is fully proved therefore holding the insurance company jointly and severally liable to pay compensation for the amount so awarded, the claim petitions were allowed.

(3.) Mr . V.S. Chauhan. counsel representing the claimants contends that testimony of the witnesses recorded in a claim case ought to have been relied upon without proof of the contents of the FIR by the insurance company. It is submitted by him that insurance company is unable to prove the contents of FIR by calling the lodger or scriber of the FIR in witness box to prove the same, in absence of such evidence the contents of the FIR cannot be relied upon and in contradistinction to the same the oral evidence adduced in the claim case has rightly been relied upon by the Claims Tribunal. It is further contended by him that cross objections have been filed seeking enhancement of compensation in the individual case which may be considered and amount so awarded by the Tribunal may be reasonably enhanced. In alternative, it is submitted that arising out of the same accident, 12 claim cases were filed in different Courts, out of them in 8 claim cases insurance company has been exonerated but finding to pay and recover has been recorded. The copy of the award dated 21.8.2006 passed in claim case Nos. 63/03, 64/03, 65/03, 66/03, 67/03, 68/03. 69/03 and 70/ 2003 has been filed wherein on exoneration of insurance company, findings to pay and recover has been recorded. Against the award passed in those cases, the insurance company accepting the finding to pay and recover has paid them compensation. In such circumstances, atleast the finding of pay and recover may be recorded looking to the aforesaid fact.