Oriental Insurance Co. Ltd Vs. Premlata Shukla &Amp; Ors  Insc 581 (15 May 2007)
S.B. Sinha & Markandey Katju
CIVIL APPEAL NO.2526 of 2007 [Arising out of S.L.P. (C) No. 2427 of 2006]
S.B. SINHA, J.
1. Leave granted.
2. Deceased Shivnandan Prasad Shukla was travelling in a Tempo Trax for
going to Allahabad from Bhopal. It collided with a truck. Registration Number
of truck could not be noticed. The truck also could not be traced.
A First Information Report was lodged by one of the occupants of the Tempo
Trax. An investigation on the basis of the said First Information Report for
commission of an offence under Section 304-A of the Indian Penal Code was
registered against the driver of the said truck. As during investigation the
truck could not be traced out, the case was closed. A Claim Petition was filed
before the Motor Vehicles Accident Claims Tribunal against the driver, owner
and the Insurance Company with which the Tempo Trax was insured. The Tribunal
upon analyzing the materials brought on record by the parties, including the
First Information Report, arrived at a finding of fact that the driver of the
Tempo Trax was not driving the vehicle rashly and negligently. It, therefore,
dismissed the claim petition opining:
"16. On the basis of the above discussions, I come to this conclusion
that the applicants on the basis of the discussions in issue No. 1, have failed
to prove that the accident dated 23rd January, 2001 was caused by rash and
negligent driving of tempo trax No. MP-04- H-5525. In these circumstances the
driver and insurance company of tempo trax No. MP-04-H-5525 cannot be held
responsible for the accident. As a result, the present claim petition is
3. In support of its finding, the decision of this Court in Kaushnuma Begum
& Ors. v New India Assurance [2001 ACJ 428 : (2001) 2 SCC 9] which was
relied upon by both the parties was referred to wherein it was held:
"18. Like any other common law principle, which is acceptable to our
jurisprudence, the rule in Rylands v.
Fletcher, 1861-73 ALL ER 1, can be followed at least until any other new
principle which excels the former can be evolved, or until legislation provides
Hence, we are disposed to adopt the Rule in claims for compensation made in
respect of motor accidents.
19. 'No fault liability' envisaged in section 140 of the MV Act is
distinguishable from the rule of strict liability. In the former the
compensation amount is fixed and is payable even if any one of the exceptions
to the rule can be applied. It is a statutory liability created without which
the claimant should not get any amount under that count. Compensation on
account of accident arising from the use of motor vehicles can be claimed under
the common law even without the aid of a statute. The provisions of the MV Act
permit that compensation paid under 'no fault liability' can be deducted from
the final amount awarded by the Tribunal. Therefore, these two are resting on
two different premises. We are, therefore, of the opinion that even apart from
section 140 of the MV Act, a victim in an accident which occurred while using a
motor vehicle, is entitled to get compensation from a Tribunal unless any one
of the exceptions would apply.
The Tribunal and the High Court have, therefore, gone into error in divesting
the claimants of the compensation payable to them.
4. Claimants being aggrieved by and dissatisfied with the said Award
preferred an appeal before the High Court. The High Court principally relying
on the depositions of depositions of Shri R.K. Sharma and Smt.
Premlata Shukla, wherein allegations were made that the tempo trax was
driven in a rash and negligent manner, opined that the First Information Report
having been legally not proved, the driver of the Tempo Trax should be held to
be guilty of driving rashly and negligently.
5. It is to be noted that in the claim petition itself a reference was made
to the lodging of the First Information Report.
6. The learned counsel appearing on behalf of the appellant would submit
that as the respondents themselves relied on the First Information Report, the
High Court could not have ignored the same. Reliance in this behalf has been
placed on Hukam Singh and Others v Smt. Udham Kaur [1969 PLR 908].
7. The learned counsel appearing on behalf of the respondent, on the other
hand, would submit that only because First Information Report was relied upon
for the purpose of proving the accident, the contents thereof ipso facto cannot
be said to have been proved. In support of the said contention, reference has
been made on Narbada Devi Gupta v Birendra Kumar Jaiswal and Another [(2003) 8
8. It is not known whether the Central Government has yet framed any scheme
in respect of the hit and run cases. We are not, however, concerned therewith
in this case. Respondent had filed an application under Section 166 of the Motor Vehicles
Act, 1988. It was required to be determined in accordance with the
procedures laid down therefor. It will, however, be pertinent to refer to
Deepal Girishbhai Soni and Ors. v. United India Insurance Co. Ltd., Baroda
[(2004) 5 SCC 385] on this aspect, wherein it was observed:
"The Law Commission furthermore recommended for laying of a scheme in
terms where of the victims of 'hit and run accident' could claim compensation
where the identity of the vehicle involved in the accident was unknown. Yet
again, the 199th Law Commission in its report submitted in 1987 stated the law
as it stood them in the following terms:
"the law as it stands present, save the provisions in chapter VIIA
inserted by the Motor Vehicles (Amendment) Act, 1982, enables the victim or the
dependants of the victim in the event of death to recover compensation on proof
of fault of the person liable to pay the compensation and which fault caused
9. Where an accident occurs owing to rash and negligent driving by the
driver of the vehicle, resulting in sufferance of injury or death by any third
party, the driver would be liable to pay compensation therefor. Owner of the
vehicle in terms of the Act also becomes liable under the 1988 Act. In the
event vehicle is insured, which in the case of a third party, having regard to
sub-section (2) of Section 147 of the Act, is mandatory in character, the
Insurance Company would statutorily be enjoined to indemnify the owner.
10. The insurer, however, would be liable to re-imburse the insured to the
extent of the damages payable by the owner to the claimants subject of course
to the limit of its liability as laid down in the Act or the contract of
insurance. Proof of rashness and negligence on the part of the driver of the
vehicle, is therefore, sine qua non for maintaining an application under
Section 166 of the Act.
11. The learned counsel appearing on behalf of the respondent contended that
First Information Report was brought on record for the purpose of proving the
accident and not for fixing the liability on the part of driver of the vehicle
12. In Narbada Devi (supra) whereupon reliance has been placed, this Court
held that contents of a document are not automatically proved only because the
same is marked as an Exhibit. There is no dispute with regard to the said legal
13. However, the factum of an accident could also be proved from the First
Information Report. It is also to be noted that once a part of the contents of
the document is admitted in evidence, the party bringing the same on record
cannot be permitted to turn round and contend that the other contents contained
in the rest part thereof had not been proved. Both the parties have relied
thereupon. It was marked as an Exhibit as both the parties intended to rely
14. Once a part of it is relied upon by both the parties, the learned
Tribunal cannot be said to have committed any illegality in relying upon the
other part, irrespective of the contents of the document been proved or not.
If the contents have been proved, the question of reliance thereupon only
upon a part thereof and not upon the rest, on the technical ground that the
same had not been proved in accordance with law, would not arise.
15. A party objecting to the admissibility of a document must raise its
objection at the appropriate time. If the objection is not raised and the
document is allowed to be marked and that too at the instance of a party which
had proved the same and wherefor consent of the other party has been obtained,
the former in our opinion cannot be permitted to turn round and raise a
contention that the contents of the documents had not been proved and, thus,
should not be relied upon. In Hukam Singh (supra), the law was correctly been
laid down by the Punjab and Haryana High Court stating;
"8. Mr. G.C. Mittal, learned counsel for the respondent contended that
Ram Partap had produced only his former deposition and gave no evidence in
Court which could be considered by the Additional District Judge. I am afraid
there is no merit in this contention. The Trial Court had discussed the
evidence of Ram Partap in the light of the report Exhibit D.1 produced by him.
The Additional District Judge while hearing the appeal could have commented on
that evidence and held it to be inadmissible if law so permitted. But he did
not at all have this evidence before his mind. It was not a case of
inadmissible evidence either. No doubt the procedure adopted by the trial Court
in letting in a certified copy of the previous deposition of Ram Partap made in
the criminal proceedings and allowing the same to be proved by Ram Partap
himself was not correct and he should have been examined again in regard to all
that he had stated earlier in the statement the parties in order to save time
did not object to the previous deposition being proved by Ram Partap himself
who was only cross-examined. It is not a case where irrelevant evidence had
been let in with the consent of the parties but the only objection is that the
procedure followed in the matter of giving evidence in Court was not correct.
When the parties themselves have allowed certain statements to be placed on the
record as a part of their evidence, it is not open to them to urge later either
in the same Court or in a court of appeal that the evidence produced was
inadmissible. To allow them to do so would indeed be permitting them both to appropriate
16. For the reasons aforementioned, the impugned judgment cannot be
sustained which is set aside accordingly. The Appeal is allowed. In the facts
and circumstances of this case, however, there shall be no order as to costs.
Pages: 1 2