JUDGMENT
A.K. Gohil, J.
1. This judgment shall govern the disposal of all the three connected appeals, out of which Misc. Appeal No. 196 of 1998 has been filed against dismissal of the claim petition and Misc. Appeal No. 263 of 1998 has been filed for enhancement of compensation by the claimants and Misc. Appeal No. 304 of 1998 has been filed by the owners of the vehicle.
2. Brief facts of the case are that on 26.6.1995 a truck bearing registration No. MP 07-A 7032 owned by Gurudeep Singh, respondent No. 2, was being driven by Lakhanpratap Singh, respondent No. 1. The said truck was insured with New India Assurance Co. Ltd., respondent No. 3, (hereinafter referred to as ‘the insurance company’). The case of the claimants was that deceased Mendabai and Doltibai along with Bhagti, Luma, Jenwati and Gopi were sitting near cement factory of Bhangarh and they were waiting for the bus to go to the place of worship. At the same time the aforesaid truck which was driven rashly and negligently came and turned turtle over the persons those who were sitting at that place. As a result of the accident, deceased Mendabai died on spot and the deceased Doltibai died on the way when she was being taken to hospital. First information report of the incident was lodged by one Ramdayal, AW 1. The husband and children of the deceased filed application for compensation. Claims Tribunal dismissed the Claim Case No. 148 of 1995, which was filed by legal heirs of deceased Doltibai on the ground that the claimants have failed to prove the death of the deceased in the said accident, as they have not filed any post-mortem report and has not proved the death of deceased in the accident against which legal heirs of deceased Doltibai has filed Misc. Appeal No. 196 of 1998 challenging the dismissal of the claim petition. The Tribunal has awarded compensation of Rs. 50,000 in Claim Case No. 168 of 1995, which was filed by the legal heirs of the deceased Mendabai. But the Tribunal exonerated the insurance company from its liability on the ground that the deceased were travelling in the truck which is a goods vehicle, therefore, the insurance company is not liable for the payment of compensation against which legal heirs of deceased Mendabai has filed Misc. Appeal No. 268 of 1998 for enhancement of compensation and owner Gurudeep Singh has also filed Misc. Appeal No. 304 of 1998 challenging the exoneration of insurance company from its liability.
3. Mr. N.D. Singhal, learned Counsel for the appellants-claimants submitted that the Tribunal has wrongly exonerated the insurance company and has wrongly dismissed the Claim Case No. 148 of 1995. He has further submitted that the copy of the post-mortem report was produced on record and the same being public document should have been considered as no evidence in rebuttal of the same is available on record. He has further pointed out that the owner of the vehicle has admitted the accident. Therefore, the Tribunal ought to have awarded compensation to the claimants. In Misc. Appeal No. 263 of 1998 he submitted that the Tribunal has wrongly exonerated the insurance company and has not properly assessed the evidence and has not awarded the proper compensation and prayed for enhancement of compensation.
4. Mr. B.D. Verma, learned Counsel for owner Gurudeep Singh submitted that the Tribunal has wrongly exonerated the insurance company from its liability. Sufficient evidence is available on record to establish that it is a case of third party accident and accident took place when the deceased were crossing the road.
5. Mr. Amit Bansal, learned Counsel appeared on behalf of the insurance company and supported the award passed by the Tribunal.
6. We have heard the learned Counsel for the parties in all the aforesaid three appeals analogously and perused the evidence on record.
7. Ramdayal, AW 1, has deposed that at the time of accident he was also standing and waiting for the bus near cement factory at Bhangarh along with Mendabai, Doltibai, Bhagti, Luma and Jenwati. He has further deposed that one truck came negligently and turned turtle at the spot where they were standing and in the accident Doltibai and Mendabai died. Luma, Bhagtibai and Jenwati received injuries. The age of the deceased Doltibai was 40 years and that of deceased Mendabai was around 60 years. He had lodged the report of the incident. The certified copy of the report has been marked as Exh. P1. In the examination-in-chief he has stated that he cannot give the number of the truck but in the cross-examination on behalf of the insurance company he has stated that they were not travelling in the truck and in the report he had mentioned number of the truck as MP 07-A 7032. He had not stated to the police that they were travelling in the truck.
8. Amar Singh, AW 2, has stated that he is the son of deceased Mendabai and his mother died due to the accident near cement factory while she was going to the place of worship. He was not effectively cross-examined on the question of accident either by owner or by insurance company. Hajarilal, AW 3, who is the husband of deceased Doltibai, has also stated that when Doltibai was going to place of worship from Raipur, she died in the road accident on the way. There is also no effective cross-examination either by the owner of the vehicle or by the insurance company. Dr. B.P. Bansal, AW 4, had conducted the post-mortem of deceased Mendabai. He has proved the post-mortem report. Owner, driver and insurance company have not produced any evidence in rebuttal.
9. After considering the evidence on record three types of evidence is available about the accident on record. In the F.I.R., Exh. P1, it has been mentioned that the deceased were travelling in the truck and truck met with an accident near cement factory at Bhangarh. The F.I.R. was lodged by Ramdayal, AW 1, but Ramdayal has denied this fact before the court and has taken a stand that the accident took place when they were waiting for bus near cement factory. He has deposed that when they were standing, truck came negligently and turned turtle near them. He has denied the suggestion that he has not lodged any such report in the police that they were travelling in the truck and the accident took place at that time. Though the owner has not produced any evidence but in the written statement he has taken a stand that the said truck was insured with the insurance company and the accident took place suddenly when they were crossing the road. On the contrary, the insurance company has taken the same defence in the written reply, which is in the F.I.R. that they were travelling in the truck. Learned Tribunal has accepted the stand taken by the insurance company on the basis of the F.I.R., Exh. P1.
10. Learned Counsel for claimants and owner vehemently argued that the F.I.R. is not a substantive piece of evidence. As argued in rebuttal if it is assumed that the F.I.R. is a public document and ought not to have been brushed aside on technical ground but it is the rule of law that it is not a substantive piece of evidence. It can only be used for corroboration or contradiction of its maker, as has been held by the Supreme Court in the case of State of Madhya Pradesh v. Surbhan . We do admit this proposition of law. It is also well settled proposition of law that the evidence recorded in criminal court and the findings arrived at thereon should not be used in claim cases. Such evidence for the purpose of claim cases is inadmissible. [See Shabbir Ahmed v. Madhya Pradesh State Road Trans. Corporation 1984 ACJ 525 (MP) and Dhanwanti v. Kulwant Singh ].
11. In this case, maker of the F.I.R. Ramdayal, AW 1, was examined and he has contradicted the story narrated in the F.I.R. and the insurance company has not produced any other document to prove the nature of evidence that at the time of accident the deceased were travelling in the truck. The insurance company has also not filed the record of criminal case as well has not produced any other witnesses who were cited as witnesses in the criminal case. The owner of the vehicle has also not produced any evidence nor he has examined the driver of the vehicle. Therefore, when the story of F.I.R. is contradicted by its maker, the same cannot be accepted. This Court is only bound to accept the evidence available on record and as produced by claimants. The claimants have come with a story that they were standing and waiting for the bus and they were not travelling in the truck. Ramdayal, AW 1, is also an eyewitness of the incident. There is no effective cross-examination of Ramdayal, AW 1, either by the insurance company or by the owner. Therefore, this Court is bound to accept the evidence produced by the claimants. If there is a breach of policy by the owner or driver of the vehicle, it was the burden on the insurance company to prove the breach of the policy. Therefore, in view of the evidence on record, we hold that the claimants have proved their case that they were standing and waiting for the bus and at that time accident took place from the said truck. It is also not in dispute that if the owner has come with a case that the insurance company is liable then it was also his duty to produce the driver and other evidence to prove that the accident took place when the deceased were crossing the road but except in the written statement there is nothing on record to believe on this contention of the owner. Therefore, the contention of the owner cannot be accepted in the absence of any proof.
12. Thus, in view of the evidence on record and under the facts and circumstances of the case, the owner, driver and insurance company are jointly and severally liable for the compensation. Insurance company shall initially pay the compensation but it will have liberty to recover the same amount from the owner of the vehicle as the owner has not produced any evidence.
13. So far as the claim for the death of the deceased Doltibai is concerned, her post-mortem report has been produced on record. Though the same has not been exhibited and no doctor has been examined, but the same being a public document is admissible in evidence. Therefore, we hold that Doltibai died in the same accident. This is further corroborated by the evidence of Ramdayal, AW 1, who is the eyewitness of the incident and by the admission of the owner in his written statement. The accident took place on 26.6.1995 at 10 a.m. F.I.R. was lodged on 26.6.1995 at 11 a.m. and the post-mortem was conducted on 27.6.1995. M.L.C. report of Doltibai dated 26.6.1995 has also been produced. According to this M.L.C. she received haematoma over skull, left parietal region and also other injuries, out of which this injury was grievous in nature. On the basis of the aforesaid two documents it is clear that she met with an accident and died because of the injuries, therefore, this finding of the Tribunal that her death has not been proved is set aside and it is held that she died in the same accident. These documents being public documents are admissible in evidence to know the nature of injuries as well as the cause of death.
14. So far as the quantum of compensation in the case of death of the deceased Doltibai is concerned, only evidence of her husband Hajarilal, AW 3, is available on record. He has stated that she was working as a labourer and was earning Rs. 40 per day. There is no rebuttal of this evidence on record. Therefore, considering this evidence it is held that the deceased was working as a labourer and was earning Rs. 40 per day and Rs. 1,200 per month. In such a case when spouse is living, the dependency shall be determined at 50 per cent, therefore, the amount of dependency would come to Rs. 600 per month and the annual dependency shall be Rs. 7,200. The deceased was an young lady of 40 years, therefore, multiplier of 15 shall be applicable. Thus, total amount of compensation shall be Rs. 1,08,000. The same amount would come after applying the formula of notional income. To this amount, a further sum of Rs. 12,000 is added in other heads like loss to estate, loss of consortium and funeral expenses, etc. Thus, claimants in Misc. Appeal No. 196 of 1998 shall be entitled for total compensation of Rs. 1,20,000 with 6 per cent per annum interest from the date of filing of this appeal.
15. In Misc. Appeal No. 263 of 1998 only question of quantum of compensation is involved. The Tribunal has awarded compensation of Rs. 50,000. As per the evidence of Amar Singh, AW 2, son of the deceased, has stated that his mother was also a labourer. She was also earning Rs. 50 per day. In the cross-examination he has admitted that she was not working regularly and at Gopalpur the labour rate is between Rs. 35 and Rs. 40. On the basis of the aforesaid evidence and looking to the age of the deceased, who was aged about 60 years and her monthly income and considering the dependency which cannot be more than 50 per cent and on applying the multiplier of 8, total compensation shall be around Rs. 50,000. Thus, considering the nature of evidence, income and age, the Tribunal has awarded a just and proper compensation of Rs. 50,000 to the claimants. No case is made out for enhancement. As such, this appeal has no merit and is dismissed.
16. Under the facts and circumstances of the case that the insurance company has not produced the documents of the criminal case and has not produced any evidence to prove that at the time of accident the deceased were travelling in the truck, we hold that initially the insurance company is liable to satisfy the award in favour of the claimants but in such a case it is also the duty of the owner of the vehicle to come forward and to lead the evidence that the deceased were not travelling in the truck and they were third party. The driver could have been the best witness for this purpose but the owner of the truck has failed to produce the driver in the evidence. The owner has also failed to produce the insurance policy. In fact it was the burden on the owner of the vehicle to prove that the deceased persons were not travelling in the truck and they were third party. In a case of breach of contract where the insurance company could establish breach of terms and conditions of the policy on the part of the owner of the vehicle, this is the settled position under the law that the insurance company can recover the awarded amount from the owner or driver of the vehicle, as has been held by the Supreme Court in the case of New India Assurance Co. Ltd. v. Swaran Singh . Therefore, it is directed that the insurance company shall satisfy the award but the insurance company shall have liberty to recover the said amount from the owner if the owner is not able to prove that they were crossing the road and were not travelling in the truck and owner has not committed any breach of the terms of the policy. If any such application is filed by the insurance company, Claims Tribunal shall enquire the question of recovery, independently without getting influenced from the finding of this appeal.
17. Consequently, Misc. Appeal No. 263 of 1998 is dismissed and the Misc. Appeal No. 196 of 1998 is allowed to the extent indicated above. Parties of both the appeals are directed to bear their own costs.